DiStiso ex rel. DiStiso v. Cook

10-4304-cv
DiStiso ex rel. DiStiso v. Cook
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2011

(Submitted: October 7, 2011 Decided: August 21, 2012)

Docket No. 10-4304-cv

ROBIN DISTISO, as next friend of NICHOLAS DISTISO, a minor,
Plaintiff-Appellee,
—v.—

JOHN COOK, JACQUELYN UCCELLO, and TAMMY COUTURE,
Defendants-Appellants.*

Before:
MCLAUGHLIN, POOLER, and RAGGI, Circuit Judges.

Defendants, an elementary school principal and two teachers, appeal from a denial of

summary judgment by the United States District Court for the District of Connecticut

(Vanessa L. Bryant, Judge) on defendants’ claims that qualified immunity shields 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.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

Judge Pooler concurs in part and dissents in part in a separate opinion.

*
The Clerk of Court is directed to amend the official caption as shown above.

1
 Johanna G. Zelman and Michael J. Rose, Rose Kallor, LLP, Hartford,
Connecticut, for Defendants-Appellants.

William S. Palmieri, Law Offices of William S. Palmieri, LLC, New Haven,
Connecticut, for Plaintiff-Appellee.

REENA RAGGI, Circuit Judge:

Plaintiff Robin DiStiso, on behalf of her biracial son Nicholas, sued the Town of

Wolcott, Connecticut, its Board of Education, and various named educators and

administrators in Connecticut Superior Court under 42 U.S.C. §§ 1981 and 1983 and

Connecticut law for alleged discrimination in connection with the child’s enrollment in the

kindergarten and first-grade classes at Wakelee public elementary school. Defendants

removed the action to the United States District Court for the District of Connecticut, which

dismissed many of plaintiff’s claims, including a claim that defendants’ efforts to place

Nicholas in special education programs were racially motivated; a claim against the

superintendent of schools, see DiStiso ex rel. DiStiso v. Town of Wolcott, No. 05-CV-1910

(PCD), 2006 WL 3355174 (D. Conn. Nov. 17, 2006); and claims against the town and the

school board pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978), see

DiStiso ex rel. DiStiso v. Town of Wolcott, 539 F. Supp. 2d 562 (D. Conn. 2008). Other

claims await trial, notably, for purposes of this appeal, § 1983 claims that Wakelee principal

2
John Cook, kindergarten teacher Jacquelyn Uccello,1 and first-grade teacher Tammy Couture

(hereinafter “defendants”) violated the Equal Protection Clause by their deliberate

indifference to students’ racial harassment of Nicholas. Defendants sought summary

judgment, arguing that qualified immunity shields them from these deliberate indifference

claims. The district court has twice ruled otherwise.

On defendants’ appeal from Judge Vanessa L. Bryant’s initial rejection of their

qualified immunity defense, see id., this court vacated the denial of summary judgment and

remanded the case to afford the district court an opportunity to reconsider the defense in light

of the intervening Supreme Court decision in Pearson v. Callahan, 555 U.S. 223 (2009); this

court’s decision in Gant ex rel. Gant v. Wallingford Board of Education, 195 F.3d 134 (2d

Cir. 1999); and the command in Saucier v. Katz, 533 U.S. 194 (2001), overruled in part on

other grounds by Pearson, 555 U.S. 223, that qualified immunity analysis “must be

undertaken in light of the specific context of the case, not as a broad general proposition,”

id. at 201. See DiStiso ex rel. DiStiso v. Town of Wolcott, 352 F. App’x 478, 481–82

(2d Cir. 2009) (summary order) (internal quotation marks omitted). Defendants now appeal

from the district court’s decision on remand again denying them summary judgment on the

ground of qualified immunity. See DiStiso ex rel. DiStiso v. Town of Wolcott, 750 F. Supp.

2d 425 (D. Conn. 2010).

For the reasons stated in this opinion, we affirm the denial of summary judgment as

1
At the time in question, Uccello went by her maiden name, Jacquelyn Tedeschi. In
this opinion, however, we refer to her by her married name, in which she is sued.

3
to claims that defendants Uccello and Cook were deliberately indifferent to racial name-

calling by kindergarten students, which in one instance may have been accompanied by a

physical assault on Nicholas. We reverse the denial, however, as to claims that defendants

were deliberately indifferent to all other allegedly racially motivated physical misbehavior

by kindergarten and first-grade students. Clearly established law requires defendants to have

had actual knowledge that the misbehavior, which was commonplace for such young

children, was racially motivated to hold them liable for a denial of equal protection based on

a theory of deliberate indifference. The record evidence, even as construed by the district

court and viewed in the light most favorable to plaintiff, cannot support a finding of such

actual, as opposed to imputed, knowledge.

I. Background

A. The Deliberate Indifference Claim

Robin DiStiso contends that from the time five-year-old Nicholas entered Jacquelyn

Uccello’s kindergarten class at the Wakelee school in late August or early September 2002,

through March 2004, when Mrs. DiStiso and her husband Philip withdrew their son from

defendant Tammy Couture’s first-grade class at Wakelee, the child was subjected to

persistent racial harassment by his classmates in the form of name-calling and physical

misbehavior. Plaintiff maintains that defendants were made aware of this racial harassment

but were deliberately indifferent to it, thereby allowing it to continue. Indeed, plaintiff

asserts that the three defendants’ indifference was informed by their own racial bias, as

evidenced by Uccello substituting a brown crayon for a yellow one that Nicholas had been

4
using when coloring a picture intended to depict himself, Couture pulling and dragging the

child to principal John Cook’s office after he refused her order to report there, and defendant

Cook failing to address racial bigotry at a high school where he had previously served as

principal.2

While defendants dispute these allegations, a court reviewing a motion for summary

judgment must view the evidence in the light most favorable to plaintiff and draw all

reasonable inferences in her favor. See Amore v. Novarro, 624 F.3d 522, 529 (2d Cir. 2010).

The rule is, however, subject to certain caveats. A court cannot credit a plaintiff’s merely

speculative or conclusory assertions. See Major League Baseball Props., Inc. v. Salvino,

Inc., 542 F.3d 290, 310 (2d Cir. 2008). Further, where a party relies on affidavits or

deposition testimony to establish facts, the statements “must be made on personal knowledge,

set out facts that would be admissible in evidence, and show that the affiant or declarant is

competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4); see Fed. R. Evid. 602.

The latter requirement is noteworthy here because, as we recognized in our earlier

decision, Nicholas’s deposition, taken when the child was eight years old about events

occurring when he was five and six, indicates that the boy has only a limited recollection of

2
Plaintiff also claimed that defendants’ racial bigotry was evidenced by their efforts
to place Nicholas in special education programs, but that claim having been resolved in favor
of defendants at the motion to dismiss stage, we need not discuss the facts pertaining to it
further. See DiStiso ex rel. DiStiso v. Town of Wolcott, 2006 WL 3355174, at *4 (finding
that, as result of failure to exhaust Individuals with Disabilities Education Act (“IDEA”)
remedies, “Plaintiff’s claims which are based on conduct pursuant to the Defendants’
obligations under the IDEA cannot stand, even if they are claims for relief not provided by
the IDEA”).

5
the alleged harassment to which defendants were purportedly indifferent. See DiStiso ex rel.

Distiso v. Town of Wolcott, 352 F. App’x at 479 (observing that “Nicholas repeatedly

testified that he did not remember or that he remembered only what he practiced with his

mother the previous day in preparation for the deposition”). While his parents, at their

depositions, testified to various occasions when their son came home from school

complaining of racial name-calling and physical misbehavior, they have no personal

knowledge of what occurred and, thus, appear competent to testify only to the fact of

Nicholas’s complaints, not to their truth. The DiStisos are, of course, competent to testify

to personal observations of their son’s condition upon return from school and to their

subsequent interactions with defendants.

In moving for summary judgment, defendants questioned the admissibility of much

of the DiStisos’ testimony. See, e.g., Uccello’s Mem. in Supp. of Summ. J. at 10, DiStiso

ex rel. DiStiso v. Town of Wolcott, No. 05-CV-1910 (VLB) (D. Conn. Jan. 22, 2007), ECF

No. 53-2. The district court did not address this evidentiary issue in its denial decision,

leaving unclear whether it was (1) tacitly ruling in favor of plaintiff on all such disputes, or

(2) reserving them for later resolution at trial. No matter. On interlocutory appeal of a

qualified immunity denial, we do not review questions of “evidence sufficiency, i.e., which

facts a party may, or may not, be able to prove at trial.” Johnson v. Jones, 515 U.S. 304, 313

(1995) (internal quotation marks omitted); accord Behrens v. Pelletier, 516 U.S. 299, 313

(1996); Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996). Thus, whatever reservations we may

have as to the ultimate admissibility of the DiStisos’ hearsay accounts of certain events, for

6
purposes of this appeal, we must accept the record evidence as characterized by the district

court.3

Mindful of these principles, we set forth the evidence in support of plaintiff’s

deliberate indifference claim by reference to its source.

1. Nicholas’s Recollections

a. Racial Name-Calling

At his deposition, Nicholas testified that “[m]ean kids” at Wakelee called him “bad

names” including “[b]lackie” and “nigger,” the latter referred to by Nicholas as the “N

word.” N. DiStiso Dep. Tr. at 49–50, 52. The child could not remember the circumstances

under which he was called these names or the frequency with which he was called them. Nor

could he identify any child who had used such racial epithets. Indeed, he ascribed even his

limited recollection of the name-calling to a recent conversation with his mother.4

3
Nothing in this opinion is intended to preclude defendants from pursuing their
evidentiary challenge on remand.
4
The deposition transcript reports the following exchange:

Q. . . . Do you remember the day that somebody said the N word to you,
or are you remembering what your mom said to you yesterday?

A. Yeah, what my mom said to me yesterday.

Q. Okay. You don’t remember when somebody called you the N word,
do you?

A. No.
...
Q. . . . Do you really remember somebody calling you that name, Blackie,

7
 b. Physical Misbehavior

Nicholas testified that “[m]ean 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. Id.

at 50–52. Nicholas also testified that classmates had thrown juice boxes at him, but he was

unable to recall the circumstances or participants.5 Notably, Nicholas did not testify that any

of this physical misbehavior was in conjunction with or somehow linked to references to his

race.

c. The Uccello Crayon Incident

or is it that you’re remembering what your mom told you yesterday?

A. I remember what my mom told me.

Q. Okay. You don’t remember what happened that day that somebody
called you Blackie, do you?

A. No.

Q. You don’t even remember who said it, do you?

A. No.

Q. You don’t know where you were, do you? Do you know where you
were when that happened? It’s okay if you don’t.

A. I don’t remember.

Id. at 53–54.
5
Although Nicholas initially identified “Justin” as a “mean kid” who had thrown a
juice box at him, N. DiStiso Dep. Tr. at 58, he quickly corrected himself, stating that he did
not remember if Justin threw a juice box at him, but that he did recall Justin stepping on his
(i.e., Nicholas’s) feet.

8
 Nicholas testified that his kindergarten teacher, Uccello—whom he referred to by her

maiden name, “Ms. Tedeschi”—was a “mean lady,”6 who had given him the “wrong crayon,”

“[a] brown crayon,” when he had been using a yellow crayon to color a figure that was

supposed to be himself. Id. at 18–21. Asked whether he remembered anything further, the

child replied, “No,” and acknowledged that his mother had helped to remind him about the

incident. Id. at 22. Nicholas and his family did not complain about this incident to Uccello

or to anyone else at the school.

6
Nicholas would subsequently testify that his mother told him that Cook, Couture,
and Uccello were mean:

Q. . . . Do you remember a man named Mr. Cook?

A. Yeah.

Q. Okay. Who is he?
...
A. A mean principal.

Q. He’s a mean principal. Who told you he’s a mean principal?

A. My mom.

Q. Your mom did. Did your mom tell you Ms. Couture was a mean
teacher, too?

A. Yeah.

Q. Yeah. And did your mom tell you that Ms. Tedeschi [i.e., Uccello] was
a mean teacher, too?

A. Yeah.

N. DiStiso Dep. Tr. at 26.

9
 d. The Couture Pulling/Dragging Incident

When asked if his first-grade teacher, Couture, had done anything “mean” to him,

Nicholas replied that she had pulled him out of his chair, causing him to hit his leg on the

desk. Id. at 23. She then dragged him across the floor and took him to Cook’s office.

Nicholas stated that he did not remember anything more about the incident and that his

mother had told him about it the previous day and gone over his answer with him.

Nevertheless, Nicholas subsequently clarified that he had an independent recollection of

Couture’s actions even before the discussion with his mother refreshed his memory.

2. Mrs. DiStiso’s Recollections

a. Nicholas’s Complaints

At her own deposition, Mrs. DiStiso testified that when Nicholas entered kindergarten

in late August or early September 2002, he “was the only black kid in his class.” R. DiStiso

Dep. Tr. at 72. Within two weeks, he began to complain to his parents almost daily of

physical misbehavior by classmates, including pinching, biting, spitting, kicking, punching,

hitting, and throwing juice boxes. Such complaints continued through first grade.

Mrs. DiStiso testified that Nicholas also complained of his classmates using racial

epithets. Her testimony as to when she first became aware of such racial name-calling and

the circumstances giving rise to the name-calling is not entirely clear. At one point, Mrs.

DiStiso dated her first awareness to within a month or two of the school year, when Nicholas

asked her what the word “nigger” meant and why classmates had called him that. Because

Nicholas seemed more “curious” than “upset” at the time, Mrs. DiStiso told him simply that

10
it was “a not nice word” that “sometimes kids use,” that she had experienced its use when

she was in school, and that he should ignore such name-calling. Id. at 122–24. Earlier in her

testimony, however, Mrs. DiStiso had indicated that she had learned of racial name-calling

the first week of September 2002 and in quite different circumstances. She recounted

Nicholas telling her that, while he was waiting with other children to wash his hands, a little

girl had “slapped him in the face” and “at the same time” called him “the N word.” Id. at

100–02. Still earlier in her testimony, Mrs. DiStiso had indicated that the girl had slapped

Nicholas without saying anything. For purposes of this appeal, we assume a jury would

resolve any testimonial discrepancies in favor of plaintiff.

Mrs. DiStiso further testified that the racial name-calling “kept going” for the first

month or six weeks of Nicholas’s kindergarten year. Id. at 161. She herself heard a racial

epithet used at a birthday party off school grounds, when two boys bumped into Nicholas and

one said “that kid is a nigger.” Id. at 146. She testified that the boy who used the word at

the birthday party was “the same kid who called [Nicholas] that in the classroom,” although

she could not recall the child’s name. Id. at 149. She did not report the birthday party

incident to anyone at the school.

Some months into the school year, Nicholas also reported to his mother that children

had called him “blacky.” Id. at 124. Further, on two unspecified occasions, Nicholas told

Mrs. DiStiso that, while washing their hands, classmates had asked him why his hands were

“still dirty after you wash them.” Id. at 130.

11
 Mrs. DiStiso did not testify to any occasions when her son complained of the use of

racial epithets while in first grade.

b. Mrs. DiStiso’s Complaints

(1) Kindergarten

Mrs. DiStiso testified that the day after Nicholas was slapped and called “nigger,” i.e.,

during the first week of September 2002, she reported the occurrence to Uccello, who

promised that she would speak to the student involved.7

A month later, in a note dated October 4, Mrs. DiStiso advised Uccello that Nicholas

had come home complaining about a boy pinching him. The note made no mention of

possible racial motivation.8 That same day, Uccello replied that she had seen the incident,

7
Uccello maintains that Mrs. DiStiso never told her that Nicholas’s classmates were
harassing him based on his race. She acknowledges speaking with Mrs. DiStiso in the first
week of September 2002, but attests that she, i.e., Uccello, initiated the contact by telephone
in order to discuss with Mrs. DiStiso concerns about Nicholas’s behavior and academic
comprehension. While Mrs. DiStiso denies this conversation, Uccello’s account finds some
support in a September 6 letter from Mrs. DiStiso to the teacher, which makes no mention
of student harassment, racial or otherwise, but, rather, states in its entirety as follows:

I was really concern about what you said about Nicholas yesterday so, I sat
down with him and went over the problem. I think he got it now. My kids are
my first priority so if Nicholas is having any other problem in class, please let
me know, so I can go over it with him. Thank you.

R. DiStiso Letter, Sept. 6, 2002. Nevertheless, for purposes of this appeal, we assume that
a jury would credit Mrs. DiStiso’s testimony that she met with Uccello in person in early
September and told her about a female student slapping Nicholas and simultaneously using
a racial epithet.
8
See R. DiStiso Letter, Oct. 4, 2002 (“Nicky came home yesterday crying and he said
that Justin was pinching his legs. Nicholas said he did it about 5 times, and it hurt.”).

12
which involved mutual misbehavior by the two kindergartners, and had handled it by

admonishing both boys.9 Mrs. DiStiso replied in a note that questioned Uccello’s failure to

intervene sooner but, again, offered no suggestion of possible racial motivation.10

Mrs. DiStiso testified that throughout the kindergarten year, she frequently wrote to

Uccello complaining about name-calling by Nicholas’s classmates. Mrs. DiStiso

acknowledged that she made no mention therein of the specific names Nicholas was being

called. Nor did she indicate that any of the names were racially disparaging.11 Nevertheless,

she testified that “a couple of times,” when speaking with Uccello in person, she did tell the

9
See Uccello Letter, Oct. 4, 2002 (“Actually, what happened yesterday was just a
quick tiff between the two boys. It started by Nicholas stepping on Justins foot, and Justin’s
reaction was to pinch him. I witnessed the whole thing and spoke with both boys about
keeping their hands and feet to themselves. I also explained that if someone does something
that upsets you, you need to use your words and tell the teacher. Thanks for your concern.”).
Defendants have produced other contemporaneous reports of Nicholas’s purported
misbehavior in kindergarten and first grade. See, e.g., Uccello Report, Sept. 11, 2002
(“Nicholas was sent to the office b/c he was ‘pretending to shoot’ his classmates. He was
spoken to twice and then proceeded to attempt to slap the other children. Mr. Cook spoke
to parents. They came in and took Nick home.”). We hereafter reference such reports only
where they provide background context to communications between the parties relevant to
plaintiff’s claims of deliberate indifference to student-on-student racial harassment.
10
See R. DiStiso Letter, undated (“[G]oing back to what happened on Thursday of last
week, when I told you that Nicky came home crying, said that Justin pinch about 5 times,
you told me in the letter that you saw the whole thing. Why did you wait until the boy pinch
Nicky, Why didn’t you stop it before all that happen. I’m not trying to be a pain but that’s
seems like common sense to me.”).
11
See R. DiStiso Dep. Tr. at 242 (“[In] all of my letters I didn’t put niggers, black, I
didn’t put no racials in there. I just put down he was teased because I feel that I didn’t have
to—I didn’t want to put that in there.”).

13
teacher that children had called Nicholas “blacky, nigger, [and] dirty hands.” Id. at 136–37;12

see also id. at 145 (indicating that Mrs. DiStiso spoke with Uccello outside the classroom

“about two” times).

Mrs. DiStiso testified that she also complained to Cook about her son being subjected

to verbal and physical taunts, speaking to him once by telephone and then leaving “two or

three answering machine[]” messages. Id. at 158. She did not testify that she ever told Cook

that the name-calling involved racial epithets.13

12
At one point in her deposition, Mrs. DiStiso appears to have stated that she advised
Uccello of all three of these racial epithets the very first time she spoke with her, i.e., in a
conversation outside the classroom during the first week of September 2002.

Q. So tell me what happened the first time. You pulled her outside [the
classroom], and what did she say?

A. I told her the kids was calling him names.

Q. Which names did you tell her?

A. Same names: blacky, nigger, dirty hands.

Q. And what did she say to you?

A. She said she would talk to the kids in the class.

R. DiStiso Dep. Tr. at 137. This would be inconsistent with her earlier testimony indicating
that Nicholas was first called “blacky” several months into the kindergarten year. Id. at 124.
For purposes of this appeal, however, we assume that a jury would resolve any discrepancy
favorably to plaintiff by assuming that she was identifying all the names she had reported to
Mrs. Uccello in their “couple of” conversations. Id. at 136.
13
The deposition transcript reports the following exchange:

Q. What did you tell him?

14
 On or about May 7, 2003, toward the end of Nicholas’s kindergarten year, Mrs.

DiStiso filed a complaint with the Connecticut Commission on Human Rights and

Opportunities (“CHRO”), charging that Nicholas had been subjected to verbal harassment

based on race from his kindergarten classmates, which had escalated to physical assaults.

She stated that she complained to Uccello and Cook, who not only failed to take effective

action to halt the misconduct, but also retaliated against Nicholas for Mrs. DiStiso’s

complaints by disciplining him, isolating him from other children, and recommending him

for special education. The CHRO investigation found no reasonable cause to support Mrs.

DiStiso’s allegations of racial discrimination. See State of Connecticut, CHRO, Finding of

No Reasonable Cause and Summary, No. 0330518, Aug. 9, 2005.

(2) First Grade

There is no evidence of Nicholas being subjected to racial name-calling during first

grade. Record evidence indicates that the DiStisos frequently complained to either Couture

A. I told him what happened in class and can he talk to the teacher and to
see what’s going on.

Q. Specifically what did you tell him happened in the class?

A. I don’t know. The name calling and kicking. And it seemed like Mrs.
Uccello is not doing the job, so maybe you can do something since he’s
a higher up, you know. He’s a principal, so can he do something about
the incident.

R. DiStiso Dep. Tr. at 159.

15
or Cook of physical encounters between Nicholas and his first-grade classmates, but in no

communication did the DiStisos suggest that the encounters were racially motivated.

To illustrate, early in Nicholas’s first-grade year, Mrs. DiStiso complained in writing

to Couture simply that Nicholas had been coming home from school over “six to seven days”

with juice stains on his clothing and complaining that classmates had thrown juice boxes at

him at lunchtime. R. DiStiso Dep. Tr. at 113. On October 17, 2003, Cook responded,

reporting that he had investigated the matter because Couture was not responsible for

supervising Nicholas at lunch, and that the lunch aide on duty “said that she has seen

Nicholas spill the juice he brings on a few occasions. Each time she has helped him clean

it up with paper towels. She has not observed it on his jacket but has seen the juice on the

table.” Cook Letter, Oct. 17, 2003. While Mrs. DiStiso was dissatisfied with the response,

she did not complain further, much less notify defendants that she thought the occurrences

were racially motivated.

Nor did Mrs. DiStiso mention race in a February 3, 2004 note to Couture advising that

Nicholas had complained of being kicked by “Jenny” at lunchtime when he tried “to ask her

a question, and she got mad and said shut up.” R. DiStiso Letter, Feb. 3, 2004. Responding

in writing the next day, Cook reported that he had met with the children at the table and that

Jenny said that Nicholas had falsely accused her of kicking him at lunch, prompting her to

call the lunch aide to the table. Cook stated that he again spoke with the lunch aide, who said

that because she had not seen the incident, she simply “ask[ed] all the students to be nice to

one another.” Cook Letter, Feb. 4, 2004. Cook advised that none of the other children at the

16
table could give him “any more information to clarify what happened.” Id. Accordingly,

Cook did not discipline any student, but did ask the lunch aide “to keep a sharp eye on the

table during lunch and to report to me any problem.” Id.

In a letter dated February 5, Couture advised the DiStisos of Nicholas’s “inappropriate

and disruptive” behavior that day. Couture Letter, Feb. 5, 2004.14 In her February 9 response,

Mrs. DiStiso accused Couture of falsely reporting misbehavior by Nicholas to satisfy Cook,15

14
The note advised as follows:

[Nicholas] was having difficulty sitting in his seat. I asked him to please sit
correctly in his chair. He fell out again, then yelled at his chair, stop pushing me.
He was writing and telling his pencil to stop it, as he moaned. He had to cut
some cards for a math game, he was cutting without looking I warned him to pay
attention. He continued to do this. I had to take the scissors away. During Art
he was yelling at another student to stop calling him names. The teacher was
standing right there, no name calling was happening. This type of behavior needs
to stop. He is yelling out during class and it is difficult to teach in that
environment. I would like to discuss this behavior with you. Please contact me
as soon as possible.

Couture Letter, Feb. 5, 2004.
15
Mrs. DiStiso’s note stated as follows:

This is about the fifth time I sent you a note about one of Nicholas classmates,
hitting him or kicking him. After every note, you respond by sending a note
claiming Nicholas is misbehaving. Its like clockwork. Instead of taking care
of the problem that I complain about, you complain about Nicholas. When I
sent the note in the other day, I bet my husband that you’re reply would be that
Nicholas did something wrong and I guess I was RIGHT. I know why you are
doing this and you’re time will come when you can testify as to why! I can’t
believe how you can pick on a little boy just to satisfy Mr. Cook. This is
wrong and you would not want someone to do this to your child. You
obviously don’t think that Nicholas knows whats going on. Well think again,
because he sees and hears everything and he knows how you mistreat him and

17
an apparent reference to Cook’s efforts to place Nicholas in special education programs.16

Replying on February 24, Cook insisted that Mrs. DiStiso’s recent letter was the only

communication to complain of student physical contact with respect to Nicholas.17 Cook

denied any mistreatment of Nicholas by any Wakelee staff, and obliquely referenced the

ongoing dispute over the child’s special education needs.18

3. Mr. DiStiso’s Recollections

a. Nicholas’s Complaints

that is why the other children in the class, mistreat him. This situation went
to far.

R. DiStiso Letter, Feb. 9, 2004.
16
Although Mrs. DiStiso did not specify in her February 9, 2004 note how Couture’s
report about Nicholas’s misbehavior would “satisfy Mr. Cook,” R. DiStiso Letter, Feb. 9,
2004, the record reveals that the DiStisos were then resisting Cook’s efforts to place Nicholas
in special education programs. In proceedings pending before the Connecticut Department
of Education (“DOE”), the DiStisos complained that such placement was sought in retaliation
for their complaints that the boy was the target of race discrimination. See State of
Connecticut, DOE, Final Decision and Order, No. 03-404, Feb. 27, 2004. Apparently
unpersuaded, on February 27, 2004, DOE authorized a neuropsychological assessment of
Nicholas, as well as the development and implementation of a special education plan to be
achieved while maintaining Nicholas in his regular first-grade classroom. See id. at 7–8.
At the time of Mrs. DiStiso’s February 9, 2004 note to Couture, the DiStisos’ CHRO
complaint was also pending. See supra at 15-16.
17
In the same letter, Cook responded similarly to a recent note from Mr. DiStiso,
which is discussed in the next section. See infra at 21–22 n.19. We must, of course, assume
that factual disputes as to the number of these communications would be resolved by the jury
in favor of plaintiff.
18
See Cook Letter, Feb. 24, 2004 (“Without more information on what [Nicholas’s]
needs are, and the proper support to attain them, he will not be successful in school. The
Wakelee staff and Wolcott district is MORE than willing to take this responsibility.”).

18
 Mr. DiStiso, who was a Waterbury Police Officer during the time at issue, testified

that at the end of Nicholas’s first week of kindergarten, his son reported being kicked by a

girl in his class while on the playground. The boy ascribed no racial motivation to the

incident; rather, he explained that the girl was “just mean.” P. DiStiso Dep. Tr. at 43.

Thereafter, every “once in a while,” Mr. DiStiso would notice black and blue marks on his

son’s body. Id. at 65. When asked how he got them, Nicholas stated that classmates were

punching or kicking him.

Mr. DiStiso testified that sometime later in the school year, Nicholas told his father

that classmates were saying that his hands were dirty even after the boy had washed them.

He further reported “[s]everal times during the school year” that children had called him

“blackie,” including during a game of tag. Id. at 45–46. Finally, Nicholas reported

classmates calling him “nigger” “[o]ver the course of the whole school year . . . probably

maybe eight times.” Id. at 62.19

b. Mr. DiStiso’s Complaints

(1) Kindergarten

Mr. DiStiso testified to no occasion when he himself reported any racial harassment

of his son to Nicholas’s kindergarten teacher, Uccello. Rather, he offered a hearsay

statement that his wife wrote to and spoke with Uccello about these matters, relaying

19
In response to a leading question as to whether it “could have been five, 15” times
that Nicholas complained of racial name-calling, Mr. DiStiso replied, “Yes.” P. DiStiso Dep.
Tr. at 62.

19
“exactly what the kids were calling” Nicholas and requesting that the teacher “talk to the kids

and tell them that’s not something they should be doing, and to stop.” Id. at 48.

Insofar as Mr. DiStiso himself spoke with Cook about his son, it was to complain that

Cook was “watching my son a little too much,” an apparent reference to the ongoing dispute

about the child’s need for special education. Id. at 69. Mr. DiStiso told Cook that he should

“start watching the kids that are calling [Nicholas] names and picking on him and punching

him and everything else instead of watching how [Nicholas] walks down the hallway or what

he does in school all day.” Id. Mr. DiStiso acknowledged that neither in this conversation

nor in any other communication with Cook did Mr. DiStiso complain that the name-calling

was racial or that any misconduct was racially motivated. Rather, Mr. DiStiso maintained

that Cook “was aware” of this invidious motivation because “[w]e made several complaints

about the exact names,” an apparent hearsay reference to his understanding of his wife’s

communications. Id.

(2) First Grade

Mr. DiStiso testified that while Nicholas was in first grade, he sent Couture and Cook

various notes, many of which are part of the record. While the notes are blunt in their

criticisms, none complained that Nicholas was experiencing racial harassment.20

20
In responding to Couture’s report of Nicholas yelling in class and hiding, Mr.
DiStiso stated as follows:

Nicholas said that the reason he hid in the cubbey and closet is because you
yelled at him in front of the class and he was embarrassed. Next time, try
taking him aside and explaining the problem to him instead of yelling at a 6

20
 Earlier in the school year, Mr. DiStiso had apparently also complained in person to

Cook about an unidentified bearded man removing Nicholas from his first-grade classroom

to question the child. Dissatisfied with Cook’s response that the only person to have

removed Nicholas from the classroom on the day in question was a female reading

consultant, Mr. DiStiso referred the matter to the police who, after questioning Cook and

Couture, did not pursue it further.

(3) Couture Pulling/Dragging Incident

Mr. DiStiso testified that on March 12, 2004, Nicholas’s last day at Wakelee, his son

year old. Yelling isn’t teaching and apparently you’re not.

P. DiStiso Letter, Dec. 9, 2003. In another note from the same date acknowledging receipt
of Nicholas’s report card, Mr. DiStiso wrote, “Its amazing—all Nicholas’s subjects are
marked E.D.—experiencing difficulty. You’re the teacher, what did you teach him? Mrs.
Couture/Report Card Teaching Skills: Grade F.” P. DiStiso Letter, Dec. 9, 2003 (emphases
in original).
In an undated note to Cook that, from its content, appears to have been written in or
around the second week of February 2004, Mr. DiStiso responded to a report of Nicholas’s
involvement in a playground fight as follows:

Nicholas has been complaining for the past month that other students have
been punching and kicking him and he has had black and blue marks on his
arms and legs. We have sent in several notes to Miss Couture. I told Nicholas
to defend himself and if someone punches or kicks him to do the same back to
them. Nicholas told us Tyler hit him first and he hit him back. I seriously
doubt Nicholas is just running around the playground beating up kids for no
reason. Probably someone did not see the first part of the fight, just the end.
Nicholas is complaining of pain to his left arm and we may have to visit his
doctor! Why is [student] James Kelly trying to break up a fight instead of a
TEACHER?!!

P. DiStiso Letter, undated (emphases in original).

21
came home from school complaining that his arm, leg, and foot hurt because Couture had

pulled and dragged him to Cook’s office. Once again, Mr. DiStiso contacted the police, this

time reporting a possible assault by the teacher. At his deposition, Mr. DiStiso testified that

when a police officer interviewed Nicholas, the boy stated that his teacher thought he had

been talking to another student without permission and told him to report to the principal’s

office. When the child refused, the teacher “grabbed him by the arm, pulled him out of the

chair and dragged him partially across the classroom.” Id. at 129.21

After interviewing Couture, who denied any physical contact with Nicholas, and

various other persons at the school, the police decided not to file charges. At his deposition,

Mr. DiStiso was critical of the police investigation, as well as the investigation subsequently

conducted by the Connecticut Department of Children and Families, which found the

DiStisos’ assault complaint against Couture unsubstantiated.

Nicholas did not return to Wakelee. Instead, the following school year, his parents

enrolled him in a private Catholic school.

B. The District Court Decision

In rejecting defendants’ qualified immunity defense on remand, the district court

21
Couture’s contemporaneous notes of the incident indicate that when Nicholas
learned that he would be denied the class’s Friday afternoon “treat” because of misbehavior
earlier in the day, he threw a pencil. Couture Note, Mar. 12, 2004. When Couture told
Nicholas that he was not the only student being denied a treat, Nicholas began to mimic
Couture, resulting in him being put in a “time out.” Id. Later, Nicholas started yelling out
words as Couture wrote the homework assignment on the board and refused to stop,
prompting the teacher to take the child to the principal’s office. We do not attempt to resolve
factual or evidentiary disputes pertaining to these events.

22
found that plaintiff had adduced “substantial evidence” of a “pervasive pattern of racial

animus and physical abuse directed at Nicholas by other students during kindergarten.”

DiStiso ex rel. DiStiso v. Town of Wolcott, 750 F. Supp. 2d at 437. The district court ruled

that, as to Uccello, there were “clearly questions of material fact regarding whether and at

what point” the teacher “became aware of any racially motivated name-calling and physical

abuse” against Nicholas. Id. at 436. With particular reference to physical misbehavior, the

district court reasoned that “[w]hile it does not appear from the record that the DiStisos

explicitly informed Uccello that they believed Nicholas was being physically abused because

of his race, such an inference could be drawn by the jury based upon the fact that the physical

abuse occurred contemporaneously with or after racially-derogatory name-calling of which

the DiStisos claim they made Uccello aware.” Id. Further, the district court concluded that

depending on the resolution of those factual disputes, a jury could reasonably find that

Uccello’s failure to take any action in response to the abuse was clearly unreasonable. See

id. The district court further determined that a jury could reasonably “consider the crayon-

drawing incident as part of the deliberate indifference analysis.” Id.

With regard to defendant Couture, the district court acknowledged that there was no

record evidence that anyone ever complained to her that students were harassing Nicholas

on account of his race. Nevertheless, “in light of the substantial evidence in the record

regarding the pervasive pattern of racial animus and physical abuse directed at Nicholas by

other students during kindergarten,” the district court concluded that “it would be reasonable

for a jury to conclude that Couture was aware of the prior racial discrimination against

23
Nicholas,” id. at 437, and “that the instances of physical abuse that occurred during first

grade were racially motivated as well,” id. at 439. Thus, there were “genuine issue[s] of

material fact for trial as to whether [Couture] was deliberately indifferent to known [racial]

harassment” by Nicholas’s peers, id. at 442; and whether her “responses to the instances of

physical abuse . . . were ‘clearly unreasonable’ under the circumstances,” id. The district

court ruled that a jury could, in answering these questions, consider the pulling/dragging

incident attributed to Couture.

Finally, with respect to Cook, the district court observed that although it was not clear

“when exactly” Cook learned of the name-calling in kindergarten, id. at 443, the record could

support the conclusion that Cook did have such knowledge and did nothing in response

beyond interviewing Uccello, which could be found unreasonable. Further, the district court

reasoned that in light of Cook’s knowledge of the racially derogatory name-calling in

kindergarten, as well as the filing of the CHRO complaint, “a reasonable jury could infer that

the acts of physical abuse that occurred during first grade were also racially motivated.” Id.

at 445. Moreover, based on Cook’s failure to take “any specific actions” in response to the

kindergarten harassment, id. at 444, the district court concluded that a reasonable jury could

find that Cook’s responses to physical misbehavior in the first grade—“investigating each

incident, speaking with the parties involved, and reporting his findings to the

DiStisos”—were also clearly unreasonable under the circumstances, id. at 445. The district

court concluded that a jury could consider evidence of Cook’s alleged inadequate response

to a racial graffiti incident at another school where he had previously served as principal as

24
“further evidence of Cook’s discriminatory intent” when responding to the claimed student

harassment against Nicholas. Id. at 446.

II. Discussion

A. Jurisdiction and Standard of Review

Although the denial of a motion for summary judgment is generally not appealable,

an exception applies where, as here, the challenged denial is based on the rejection of

qualified immunity. See Doninger v. Niehoff, 642 F.3d 334, 352 (2d Cir.), cert. denied, 132

S. Ct. 499 (2011); Walczyk v. Rio, 496 F.3d 139, 153 (2d Cir. 2007). Such a denial is

appealable only to the extent that resolution of the qualified immunity defense turns on issues

of law. See Doninger v. Niehoff, 642 F.3d at 352. Thus, on such an appeal, we generally

may not review a district court’s determination that record evidence gives rise to genuine

factual disputes. See Johnson v. Jones, 515 U.S. at 313; accord Behrens v. Pelletier, 516

U.S. at 313; Salim v. Proulx, 93 F.3d at 89.22

This does not mean that a district court can fully insulate a qualified immunity denial

from appellate review “[s]imply [by] declaring that genuine issues of fact exist.” Martinez

v. City of Schenectady, 115 F.3d 111, 114 (2d Cir. 1997). Rather, we may exercise

interlocutory jurisdiction over a qualified immunity denial in such circumstances “if the

22
Although there may be rare circumstances in which it may “be appropriate to
exercise ‘pendent appellate jurisdiction’ over” even factual disputes, Johnson v. Jones, 515
U.S. at 318; see also Toussie v. Powell, 323 F.3d 178, 184 (2d Cir. 2003) (discussing court’s
standard permitting appellate review of “pendant issues” that are “inextricably intertwined
with” legal question of qualified immunity (internal quotation marks omitted)), defendants
do not suggest that this is such a case.

25
defendant contests the existence of a dispute or the materiality thereof” as a matter of law,

or “contends that he is entitled to qualified immunity even under plaintiff’s version of the

facts.” Tierney v. Davidson, 133 F.3d 189, 194 (2d Cir. 1998); see Johnson v. Jones, 515

U.S. at 313; accord Behrens v. Pelletier, 516 U.S. at 313; Salim v. Proulx, 93 F.3d at 89. In

addressing any such legal challenges here, our standard of review is de novo. See Faghri v.

Univ. of Conn., 621 F.3d 92, 96 (2d Cir. 2010).

B. The Qualified Immunity Defense

Qualified immunity shields “government officials from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Messerschmidt v. Millender, 132 S. Ct.

1235, 1244 (2012) (internal quotation marks omitted). Qualified immunity thus affords

government officials “breathing room” to make reasonable—even if sometimes

mistaken—decisions, id. at 1249 (internal quotation marks omitted), and “protects all but the

plainly incompetent or those who knowingly violate the law” from liability for damages, id.

at 1244 (internal quotation marks omitted). Whether qualified immunity applies in a

particular case “generally turns on the objective legal reasonableness” of the challenged

action, “assessed in light of the legal rules that were clearly established at the time it was

taken.” Id. at 1245 (internal quotation marks omitted).

In Saucier v. Katz, the Supreme Court instructed courts to conduct a qualified

immunity inquiry sequentially, first deciding whether the plaintiff has complained of the

violation of a right guaranteed by the Constitution or federal law, and only then assessing

26
whether the right was sufficiently clearly established at the time of the official’s actions that

it would have been “clear to a reasonable offic[ial] that his conduct was unlawful in the

situation he confronted.” 533 U.S. at 202. More recently, the Court has afforded flexibility

in this area. See Pearson v. Callahan, 555 U.S. at 234. While sequential analysis “promotes

the development of constitutional precedent,” id. at 236, where qualified immunity is clearly

warranted at the second step of analysis, courts may simply rule on that basis without

employing “scarce judicial resources to resolve difficult and novel questions of constitutional

or statutory interpretation that will have no effect on the outcome of the case,” Ashcroft v.

al-Kidd, 131 S. Ct. 2074, 2080 (2011) (internal quotation marks omitted).

C. Deliberate Indifference as a Basis for Claiming Denial of Equal Protection

The constitutional right here at issue is afforded by the Equal Protection Clause, which

provides that no state shall “deny to any person within its jurisdiction the equal protection

of the laws.” U.S. Const. amend. XIV, § 1. The “central purpose” of the Equal Protection

Clause is “the prevention of official conduct discriminating on the basis of race,” the very

misconduct alleged in this case. Washington v. Davis, 426 U.S. 229, 239 (1976). To prevail

on a § 1983 claim of race discrimination in violation of equal protection, the law requires a

plaintiff to prove the defendant’s underlying “racially discriminatory intent or purpose.”

Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 2665 (1977); accord

Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d at 139–40 (collecting cases).

Since Gant, it has been clearly established law in this circuit that claims of intentional

race discrimination can be based on the “deliberate indifference” of school boards,

27
administrators, and teachers to invidious “harassment, in the school environment, of a student

by other children or parents.” Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d at 140

(holding that “only deliberate indifference to such [racial] harassment can be viewed as

[intentional] discrimination by school officials themselves”). Thus, to succeed on a § 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, see id. at 140; (2) that such race-based harassment was

“actually known” to the defendant school official, id. at 141 n.6; 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, id. at 141 (internal quotation mark omitted). In identifying these

elements, Gant emphasized that deliberate indifference “is ‘not a mere “reasonableness”

standard’ that transforms every school disciplinary decision into a jury question.” Id.

(quoting Davis el rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 649 (1999)).

Rather, consistent with the well established requirement that an equal protection violation

be intentional or purposive, see Village of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. at 265, the Gant elements work together to ensure that “[t]he ultimate inquiry” in

a deliberate indifference case “is one of [racially] discriminatory purpose on the part of the

defendant himself,” Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d at 141.

28
 D. Defendants’ Qualified Immunity Defense to Plaintiff’s Claim of Deliberate
Indifference to Student Racial Harassment

Consistent with our obligation to consider a qualified immunity defense “in light of

the specific context of the case, not as a broad general proposition,” Saucier v. Katz, 533 U.S.

at 201, we separately consider the claims that defendants Uccello and Cook were indifferent

to racial name-calling directed at Nicholas in kindergarten and the claims that all defendants

were indifferent to racially motivated physical misbehavior directed at Nicholas in both

kindergarten and first grade. We conclude that qualified immunity is not available to

defendants Uccello and Cook in the first context on the evidentiary record set forth by the

district court. We conclude, however, that qualified immunity is available as a matter of law

in the second context.

1. Uccello and Cook: Racial Name-Calling in Kindergarten

a. Record Evidence of Racial Name-Calling in Kindergarten
Satisfies Even the Davis Standard of Harassment

At the outset, we note that defendants generally maintain that the first element of a

deliberate indifference claim required plaintiff to adduce evidence that Nicholas not only

experienced student-on-student harassment based on race, but that this racial harassment was

“so severe, pervasive, and objectively offensive” as to have deprived the child “of access to

the educational opportunities or benefits provided by the school.” Gant ex rel. Gant v.

Wallingford Bd. of Educ., 195 F.3d at 140 n.5 (quoting Davis ex rel. LaShonda D. v. Monroe

Cnty. Bd. of Educ., 526 U.S. at 650) (internal quotation mark omitted). Defendants assert

that in the absence of such evidence, they were under no constitutional obligation to take any

29
action in response to any complaints of student racial harassment of Nicholas. It is useful

to clarify at the outset that this argument misconstrues our decision in Gant.

In Gant, we observed that in Davis ex rel. LaShonda D. v. Monroe County Board of

Education, the Supreme Court had located a particular severity requirement in the language

of Title IX for claims brought under that statute for school districts’ deliberate indifference

to student-on-student sexual harassment. See Gant ex rel. Gant v. Wallingford Bd. of Educ.,

195 F.3d at 140 n.5 (citing Davis, 526 U.S. at 648–52). Thus, school officials could not be

liable under Title IX for failure to respond to harassment consisting of nothing more than

“simple acts of teasing and name-calling among school children, . . . even where these

comments target differences in gender.” Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of

Educ., 526 U.S. at 652. But in Gant, we specifically declined to decide whether the severity

requirement that Davis derived from Title IX’s statutory text also applied to deliberate

indifference claims under the Constitution’s Equal Protection Clause. See Gant ex rel. Gant

v. Wallingford Bd. of Educ., 195 F.3d at 140 n.5 (“We need not—and do not—decide

whether mere name-calling is insufficient in the equal protection setting as well . . . .”).

Indeed, the Supreme Court has signaled caution in drawing any such conclusion. See

Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257 (2009) (observing that “standards

for establishing” Title IX liability and equal protection liability based on discriminatory

harassment in the public school context “may not be wholly congruent”).

Defendants submit that if we were now to hold that the degree of racial harassment

necessary to support a deliberate indifference claim under the Equal Protection Clause is less

30
than that required to support such a claim under Title IX, they would be entitled to qualified

immunity because no such rule of law was clearly established at times relevant to plaintiff’s

claim. We need not here conclusively decide whether the Davis standard applies to equal

protection claims because the record, as viewed by the district court, is sufficient to permit

a jury to find that standard of severity satisfied in any event with regard to the racial name-

calling allegedly experienced by Nicholas during kindergarten and to which defendants

Uccello and Cook were purportedly indifferent.23

In reaching this conclusion, we recognize that much of the evidence pertaining to

racial harassment of Nicholas is a product of limited memory—indeed, very limited memory

in the case of Nicholas himself, the only witness with direct knowledge of any of the alleged

racial incidents occurring at school. See supra Part I.A.1.24 Nevertheless, if the jury were

to credit Nicholas, as we must assume it would, it could find that kindergarten classmates

called the child racial epithets or disparaged his race in no fewer than three ways: (1) by

calling him “nigger,” (2) by calling him “blackie,” and (3) by suggesting that the boy’s skin

remained dirty even after washing. Defendants do not—and cannot—dispute that such

conduct, particularly use of the reviled epithet “nigger,” raises a question of severe

23
At any trial on remand, defendants may request jury interrogatories as to the
severity of the harassment found in order to preserve their qualified immunity claim if a jury
were to find for plaintiff on any lesser standard of severity than the one articulated in Davis,
and if this court were later to approve such a standard.
24
Mrs. DiStiso was only a direct witness to a kindergarten classmate calling her son
“nigger” at a birthday party held outside of school.

31
harassment going beyond simple teasing and name-calling. See Davis ex rel. LaShonda D.

v. Monroe Cnty. Bd. of Educ., 526 U.S. at 652. In the work context, we have observed that

“[p]erhaps no single act can more quickly alter the conditions of employment and create an

abusive working environment than the use of an unambiguously racial epithet such as

‘nigger’ by a supervisor in the presence of his subordinates.” Richardson v. N.Y.S. Dep’t

of Corr. Serv., 180 F.3d 426, 439 (2d Cir. 1999) (internal quotation marks omitted),

abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53

(2006). Similarly, in the school context, a teacher’s indifference to children’s use of this

particular epithet to belittle a child may well be found to have caused the sort of educational

deprivation referenced in Davis, particularly if its use was “sufficiently continuous and

concerted . . . to be deemed pervasive.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002)

(internal quotation mark omitted) (stating with respect to Title VII claims of sex

discrimination that isolated acts, unless very serious, generally do not meet threshold of

severity or pervasiveness).

Although Nicholas himself had no present recollection of the frequency of these

racially derogatory remarks or even of who said them, when they were said, or the

circumstances in which they were said, see supra Part I.A.1.a, his parents testified that their

son complained of racial name-calling, specifically, use of the word “nigger,” approximately

eight, and possibly as many as 15, times over the course of his kindergarten year. See supra

Part I.A.3.a. Mr. and Mrs. DiStiso may not be competent witnesses to the underlying truth

of their child’s complaints, i.e., to the fact that other children called Nicholas racial epithets.

32
See supra Part I.A. But if a jury were to credit Nicholas’s testimony that he experienced such

name-calling and reported it to his parents, his parents’ testimony as to the number of times

their son made such reports, which we must assume would also be credited, might constitute

circumstantial evidence as to the frequency of the harassment. This is enough to raise triable

issues of fact as to (1) whether Nicholas experienced racial name-calling during his

kindergarten year at Wakelee and, if so, (2) whether that name-calling was sufficiently severe

or pervasive as to have effectively deprived the child of educational opportunities provided

by the school.

Thus, neither Uccello nor Cook, whom plaintiff sues for deliberate indifference to

racial harassment of Nicholas in kindergarten, 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.

b. The Actual Knowledge Element

Defendants Uccello and Cook next contend that they are entitled to qualified

immunity because the record does not demonstrate their actual knowledge of racially

motivated student harassment. See Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d

at 141 & n.6. No evidence was adduced that either Uccello or Cook ever witnessed any

Wakelee student use racial epithets toward Nicholas. Nor did Nicholas testify that he ever

reported the use of such epithets to any person at Wakelee. Thus, the relevant evidence of

notice is provided only by his parents.

33
 As to Uccello, Mrs. DiStiso testified that, in the first week of September, on the day

after Nicholas told her that a classmate had slapped him and called him “nigger,” she met in

person with Uccello to complain about the incident. See supra Part I.A.2.b.(1). Further,

assuming that any inconsistencies in Mrs. DiStiso’s testimony would be resolved in her

favor, a reasonable jury could find that Mrs. DiStiso complained about students’ use of racial

epithets to Uccello at least one more time in person, see R. DiStiso Dep. Tr. at 137–38, 145,

and about the dirty-hand comment on one occasion in writing, id. at 131.25 This is sufficient

to raise a triable question of fact as to Uccello’s actual knowledge of the alleged student

racial harassment.

The record is less clear as to whether Cook was specifically alerted to racial name-

calling in kindergarten.26 The district court, however, construed the evidence to “indicate[]

25
Insofar as Mr. DiStiso testified that his wife spoke with Uccello and told the teacher
“exactly what the kids were calling” Nicholas, P. DiStiso Dep. Tr. at 48, we note that he is
likely not a competent witness to testify as to what Uccello knew since he did not witness this
conversation, though we may not ourselves decide such an evidentiary matter on this
interlocutory appeal. See Johnson v. Jones, 515 U.S. at 313; accord Behrens v. Pelletier, 516
U.S. at 313; Salim v. Proulx, 93 F.3d at 89.
26
As discussed supra Part I.A.2.b.(1), when Mrs. DiStiso was asked to detail what she
told Cook in her telephone complaints to the principal, she replied, “I don’t know. The name
calling and kicking. And it seemed like Mrs. Uccello is not doing the job, so maybe you [i.e.,
Cook] can do something since he’s a higher-up, you know.” R. DiStiso Dep. Tr. at 159.
Mrs. DiStiso never mentioned racial epithets or racial motivation in her written
communications to Cook or to any other school official: in “all of my letters I didn’t put
niggers, black, I didn’t put no racials in there. I just put down he was teased because I feel
that I didn’t have to—I didn’t want to put that in there.” Id. at 242. Insofar as Mr. DiStiso
testified that “[w]e made several complaints about the exact names,” he appears to be
referencing his wife’s communications with Cook, not his own. P. DiStiso Dep. Tr. at 69.

34
that the DiStisos complained to Cook early in the kindergarten school year that other students

were calling Nicholas racially derogatory names.” DiStiso ex rel. DiStiso v. Town of

Wolcott, 750 F. Supp. 2d at 445 (emphasis added). Accepting that characterization on this

appeal, see Doninger v. Niehoff, 642 F.3d at 352, there is a triable issue of fact on the actual

knowledge element of a deliberate indifference claim as clearly established in Gant.

Thus, neither Uccello nor Cook is entitled to qualified immunity on the actual

knowledge prong of plaintiff’s claim that they were deliberately indifferent to racial name-

calling in kindergarten.

c. The Reasonable Response Element

Finally, defendants Uccello and Cook argue that they are entitled to qualified

immunity because their responses to complaints of kindergarten name-calling were, as a

matter of law, not unreasonable, or alternatively, that they were not so clearly unreasonable

as to have violated established equal protection law. See Gant el rel. Gant v. Wallingford Bd.

of Educ., 195 F.3d at 141. We are not persuaded.

As to Uccello, Mrs. DiStiso testified that, in response to complaints of racial name-

calling by kindergartners, the teacher stated that she would talk to the children involved.

Uccello maintains that talking to the children was not a clearly unreasonable response to the

conduct at issue. The problem with this argument is that the district court found the record

evidence sufficient to permit a reasonable jury to conclude that Uccello did nothing in

response to several of Mrs. DiStiso’s complaints of racial name-calling. To be sure, Uccello

offered no evidence that she ever spoke to a kindergarten student about racial name-calling.

35
This is hardly surprising given the teacher’s insistence that no one ever reported racial name-

calling to her.27 But assuming, as we must on this appeal, that a jury would credit Mrs.

DiStiso’s testimony that she specifically alerted Uccello to racial name-calling at least twice

orally and once in writing, and that the jury would further find that Uccello did nothing to

stop or deter such race-based mistreatment of Nicholas, that would be sufficient to raise a

material factual question as to the reasonable response element of the deliberate indifference

claim. Indeed, defendants do not even argue that a teacher could think that a reasonable

response to repeated complaints of repeated student racial name-calling was to do nothing.

The district court also concluded that record evidence would permit a reasonable jury

to find that Cook did nothing in response to kindergarten complaints of racial name-calling

except speak to Uccello; he did not conduct “a ‘full’ investigation” of the incidents. DiStiso

ex rel. DiStiso v. Town of Wolcott, 750 F. Supp. 2d at 435. Because such a response to

purported actual knowledge that children were repeatedly calling a student racial epithets,

including a reviled racial epithet, could be found unreasonable, Cook too is not entitled to

qualified immunity as a matter of law on this part of plaintiff’s claim.

27
Mrs. DiStiso acknowledged that on one occasion when she sent Uccello a letter
asking her to speak to a child “about calling Nicholas names,” she did not advise the teacher
that the names used were racial epithets. R. DiStiso Dep. Tr. at 126; see id. (“I didn’t wrote
no names, I didn’t put blacky there, I didn’t put nigger there.”). Mrs. DiStiso testified that
Uccello reported speaking to the child, who denied calling Nicholas names. Mrs. DiStiso
considered this response unsatisfactory because “it seemed” that Uccello was taking “the
other kid’s word over my son’s.” Id. at 128. She thought the teacher should have spoken to
both children and told them “that’s not a nice word, you shouldn’t call, you know.” Id. at
129.

36
 In sum, there are disputed issues of fact as to each element of plaintiff’s claims that

Uccello and Cook were deliberately indifferent to kindergarten students’ repeated use of

racial epithets to belittle Nicholas. Because the district court found the record evidence

sufficient to allow each of those elements to be decided in favor of plaintiff, and because we

must accept that sufficiency determination on this appeal, Uccello and Cook are not entitled

to judgment on the ground of qualified immunity.

2. All Defendants: Racially Motivated Physical Misbehavior

a. The Actual Knowledge Element

We reach a different conclusion with respect to plaintiff’s claims that defendants were

each deliberately indifferent to students’ racially motivated physical misbehavior toward

Nicholas. In so doing, we identify legal error in the district court’s analysis, which appears

not to have meaningfully distinguished the second element of a deliberate indifference claim

as established by Gant, i.e., a defendant’s actual knowledge of student-on-student racial

harassment, see Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d at 141 & n.6, from

the first element, i.e., students’ racial harassment of a peer, see id. at 141. Rather, the district

court largely elided consideration of the actual knowledge element by relying on an

assumption as to the racial harassment element that is not clearly established in law: that

evidence of student-on-student racial harassment in any respect can, without more, support

an inference that any further student misbehavior directed to the same peer is also racially

motivated. That assumption gave rise to another, also not clearly established in law: that

evidence of a school official’s knowledge of the initial racial harassment is enough, by itself,

37
to permit a finding of his actual knowledge that any further misbehavior was also racially

motivated. As we will explain herein, 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.

Where, as in this case, the subsequent misbehavior is of a type routinely engaged in by

school children of the age at issue without regard to motivation, there must be some objective

evidence linking initial racially hostile acts to such subsequent misbehavior to support a

finding that a school official has actual knowledge that the latter behavior, like the former,

is racially motivated.

Here, the only record account of physical misbehavior that is objectively linked to

racial harassment is Mrs. DiStiso’s hearsay testimony that a kindergarten student slapped

Nicholas when the student called Nicholas “nigger.” Assuming that admissible evidence of

this occurrence could be adduced, defendants Uccello and Cook are not entitled to qualified

immunity for the reasons discussed in the preceding section of this opinion. But as to all

other complaints of physical misbehavior, there is no objective evidence linking the physical

conduct to the alleged racial name-calling. Nor is there evidence that the misbehavior went

beyond the commonplace for children of Nicholas’s age. In these circumstances, no clearly

established law would have alerted defendants that they could be deemed to have actually

known that the physical misbehavior was racially motivated so as to expose their responses

to the physical misbehavior to possible constitutional scrutiny.

We discuss this conclusion further as it pertains to each individual defendant.

38
 (1) Uccello

In contrast to record evidence that Mrs. DiStiso personally advised defendant Uccello

of kindergarten racial name-calling, no evidence indicates that any of the DiStisos advised

Uccello that they thought students’ physical misbehavior (with the exception of the

aforementioned slap) was racially motivated. Nevertheless, the district court relied on an

unpublished decision from a neighboring district, Patenaude v. Salmon River Central School

District, No. 03-CV-1016 (TJM), 2005 WL 6152380 (N.D.N.Y. Feb. 16, 2005), to support

its conclusion that a jury could infer Uccello’s actual knowledge of a racial motive for any

physical misbehavior directed at Nicholas in kindergarten simply from her awareness of the

racial name-calling. This was error.

Patenaude involved numerous incidents of verbal and physical abuse, some quite

egregious, by high school students. The district court stated that even though school

authorities were not made known of all the misconduct, “a fair-minded trier of fact could

reasonably conclude that, once the school district was aware of potential racial

discrimination, all the other incidents to which Plaintiff was subjected (e.g., physical assaults,

non-race-based name-calling, the doctored picture, etc.) were in furtherance of the race-based

harassment.” Id. at *8. Citing this language, the district court in this case concluded that a

reasonable jury could find that all physical misbehavior directed at Nicholas by his

classmates was racially motivated based on “the fact that the physical abuse occurred . . .

after racially-derogatory name-calling.” DiStiso ex rel. DiStiso v. Town of Wolcott, 750 F.

39
Supp. 2d at 436. Further, because “the DiStisos claim they made Uccello aware” of the racial

name-calling, that was sufficient to raise “clear[] questions of material fact” regarding

Uccello’s actual knowledge of the kindergartners’ racial motivation for all physical

misbehavior. Id. In short, because a jury could infer that “physical abuse occurr[ing] . . .

after racially derogatory name-calling” was racially motivated (the first element of a

deliberate indifference claim), that was a sufficient basis for finding that a teacher who was

aware of the name-calling had actual knowledge that any subsequent physical misbehavior

was also racially motivated (the second element). Id.

The reasoning is legally flawed in several respects. First, to the extent its legal

foundation is Patenaude, an unpublished 2005 district court decision cannot define the scope

of clearly established deliberate indifference law in this circuit in 2002 through 2004, the

years at issue in this case. “We look to Supreme Court and Second Circuit precedent at the

time of the alleged violation to determine whether [challenged] conduct violated a clearly

established right.” Okin v. Vill. of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 434

(2d Cir. 2009). Second, insofar as Patenaude itself relied on two decisions of this court,

Feingold v. New York, 366 F.3d 138 (2d Cir. 2004), and Cruz v. Coach Stores, Inc., 202

F.3d 560 (2d Cir. 2000), these employment cases hold only that evidence of a defendant’s

hostility toward a plaintiff based on multiple protected characteristics, such as race, sex, and

religion, may in some circumstances be considered together in assessing a discrimination

claim. See Feingold v. New York, 366 F.3d at 151–52; Cruz v. Coach Stores, Inc., 202 F.3d

at 572. Neither case discusses when evidence of a single invidious motive for certain

40
conduct (here, racial name-calling) supports an inference of invidious motivation for other

conduct (here, routine physical misbehavior by five- and six-year-olds). Much less do these

cases clearly establish that a teacher’s actual knowledge of children’s racial motivations for

the latter conduct can be inferred simply from her awareness of the earlier invidious conduct.

Third, the relevancy of employment discrimination decisions such as Feingold and Cruz is

limited by the Supreme Court’s observation in Davis that “schools are unlike the adult

workplace.” Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. at 651.

“[C]hildren may regularly interact in a manner that would be unacceptable among adults,”

id., making assumptions about the motivations underlying children’s actions particularly

difficult. Recognition of this reality reinforces the need for more than speculation to prove

a teacher’s actual knowledge that commonplace schoolyard misbehavior by very young

children is invidiously motivated.

To date, no Supreme Court or Second Circuit law clearly establishes that evidence of

prior racial name-calling by unidentified kindergarten or first-grade students suffices to

demonstrate that any subsequent physical misbehavior directed at the same classmate is also

racially motived. Indeed, we conclude that something more is necessary to support an

inference that a teacher or school official actually knew such subsequent misconduct was

racially motivated. Notably, in Patenaude, the record revealed that the same identified

students were engaged in both the conduct whose invidious purpose was evident and the

conduct whose purpose was ambiguous. See Patenaude v. Salmon River Cent. Sch. Dist.,

2005 WL 6152380, at *1–4. The common perpetrators provided an objective connection

41
linking the latter conduct to the former, so as to permit a reasonable inference that the actions

shared the same invidious motive. In such circumstances, a jury might well find that if a

teacher actually knows that particular students have harassed a classmate for invidious

reasons on several occasions, the teacher actually knows that the same prohibited motive

animates the same students’ further misbehavior toward the same classmate.

By contrast, in this case, there is no record evidence as to the identity of any child who

engaged in the alleged racial name-calling. Nor is there any evidence that any perpetrators

of the alleged physical misbehavior (again, with the exception of the slapping incident)

(1) were involved in the earlier racial name-calling, (2) witnessed the earlier racial name-

calling, or (3) even knew about the earlier racial name-calling. Absent some such evidence

to connect the racial name-calling to the later commonplace physical misbehavior, there is

no basis in established law for inferring that a teacher who receives complaints as to the

racial motivation for former conduct has actual knowledge that the latter conduct is similarly

motivated. While Gant recognizes that evidence showing that the defendant “should have

known” that conduct was invidious “can, in some circumstances, create an inference . . . that

the defendant did know,” Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d at 141 n.6

(emphasis in original), even “should have known” here requires some objective connecting

evidence between the racial name-calling and the subsequent routine physical misbehavior.

To hold otherwise, as our dissenting colleague urges, would effectively transform Gant’s

actual knowledge requirement into an imputed knowledge standard. This we decline to do

lest deliberate indifference liability reach beyond those school officials who can be said to

42
have violated the Equal Protection Clause by themselves intending race discrimination to

continue. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. at 264–65;

accord Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d at 139–40.

In sum, because the record evidence is insufficient, as a matter of law, to support a

finding that Uccello actually knew that her kindergarten students’ routine physical

misbehavior toward Nicholas was racially motivated, Uccello is entitled to an award of

summary judgment based on qualified immunity for this part of plaintiff’s deliberate

indifference claim.

(2) Couture

The same conclusion applies with even more force to Couture. No evidence was

adduced of any racial name-calling in first grade. Nor did the DiStisos ever complain to

Couture that physical misbehavior in first grade was racially motivated. Further, because

there was only a partial overlap between the students in Nicholas’s kindergarten and first-

grade classes, and because the perpetrators of the racial name-calling in kindergarten have

never been identified by name, one could only speculate as to whether any name-caller was

in both classes, or even whether any first-grader involved in physical misbehavior had

witnessed or knew of the name-calling. Moreover, all or most of the alleged first-grade

incidents occurred on the playground or in the lunchroom, where Couture was not present

and had no supervisory responsibility.

While the district court acknowledged the lack of record evidence that Couture ever

received any complaints about racially motivated harassment during first grade or that she

43
knew about racial harassment in kindergarten, it nevertheless concluded that a jury could

“presume that Couture familiarized herself with the histories of her incoming students in

order to develop her teaching plan.” DiStiso ex rel. DiStiso v. Town of Wolcott, 750

F. Supp. 2d at 437. And assuming Couture had undertaken such review, the district court

reasoned, she would have discovered the DiStisos’ kindergarten allegations of racially

motivated harassment. See id. at 438.

We identify legal error in such reliance on presumptions and speculation to support

an inference not only that Couture had actual knowledge of complaints of past racial

harassment, but also that she therefore had actual knowledge that the commonplace physical

misbehavior of her first-grade students was racially motivated. Although Gant acknowledges

that “a showing that the defendant ‘should have known’ can, in some circumstances, create

an inference . . . that the defendant did know,” Gant ex rel. Gant v. Wallingford Bd. of Educ.,

195 F.3d at 141 n.6 (emphasis in original), the circumstances presented here do not, as a

matter of law, permit such an inference. This is so because the inference deemed permissible

by the district court, i.e., that Couture knew of the DiStisos’ complaints in kindergarten,

specifically, the complaints of racial name-calling, is derived not from “circumstances that

were . . . actually known to” Couture, id., but rather from an assumption unsupported by

established law, i.e., that Couture should have taken steps to learn more about the

circumstances of the past school year. There is no meaningful difference between stating that

a jury can reasonably presume that particular affirmative steps were taken by a defendant and

holding that such a defendant has a legal duty to take such affirmative steps. In fact, neither

44
Gant nor any other decision by the Supreme Court or this court establishes a teacher’s duty

affirmatively to investigate student files for possible prior complaints of racial harassment

at the risk of being charged with deliberate indifference. Nor is there any basis for

speculating that Couture took such steps here. There is no record evidence as to the practices

routinely followed by this teacher or her peers in this respect, nor is there any evidence of

school policies on the subject.

In any event, for the reasons fully discussed supra Part II.D.2.a.(1), even if Couture

had undertaken such an investigation and learned of the racial name-calling in kindergarten,

such knowledge would not by itself demonstrate her actual knowledge that any physical

misbehavior directed at Nicholas in first grade was racially motivated. Because the physical

misbehavior at issue was not out of the ordinary for first-graders, some objective evidence

was necessary to link the misconduct to the racial name-calling to support an inference that

Couture had actual knowledge that the physical misbehavior was racial harassment. No such

evidence having been adduced, Couture is entitled to summary judgment on the ground of

qualified immunity.

(3) Cook

For the same reasons already discussed with respect to Uccello and Couture, see supra

Part II.D.2.a.(1), no clearly established law permits an inference that Cook had actual

knowledge that the complained-of physical misbehavior toward Nicholas in kindergarten or

first grade was racially motivated in the absence of some objective evidence connecting the

latter misbehavior to the earlier racial name-calling. The DiStisos’ CHRO complaint

45
provided Cook with notice only of the parents’ subjective belief that physical misbehavior

toward Nicholas which the parents did not witness was race-based. There is no basis in

clearly established law to alert a school official that the communication of such subjective

belief can by itself provide the requisite actual knowledge that children’s subsequent

commonplace misbehavior is racially motivated. Rather, we conclude that here, some

evidence of an objective link between the alleged racial name-calling in kindergarten and the

ensuing physical misbehavior is required to permit an inference of a defendant’s actual

knowledge of racial motivation. See id. No such evidence having been adduced, Cook too

is shielded by qualified immunity from plaintiff’s claim that he was deliberately indifferent

to racially motivated physical misbehavior by Nicholas’s kindergarten and first-grade

classmates.

b. The Reasonable Response Element

Because plaintiff’s claims of deliberate indifference to physical misbehavior fail at

the actual knowledge step of Gant analysis, we need not consider defendants’ arguments for

qualified immunity based on the final, reasonable response, element of a deliberate

indifference claim. See Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d at 141. Any

such inquiry would of course require us to assume that plaintiff could prove both that the

physical misbehavior was racially motivated and that defendants had actual knowledge of

that fact. Nevertheless, because we identify legal error in the district court’s analysis of the

third element of a deliberate indifference claim as it pertains to Couture, we correct that error

here.

46
 As the district court acknowledged, Couture “reported each [alleged] incident [of

physical misbehavior] to Cook” after she learned of it so that Cook could conduct an

investigation. DiStiso ex rel. DiStiso v. Town of Wolcott, 750 F. Supp. 2d at 442.

Nevertheless, the district court concluded that Couture’s failure to take “personal action” to

stop the physical misbehavior raised a question of fact as to the reasonableness of her

response. Id. Gant instructs to the contrary.

In Gant, we held that deliberate indifference claims against a school principal failed

as a matter of law because the principal, who “was not responsible for disciplining the

offender,” reasonably declined to take further actions in response to alleged racial name-

calling after a teacher held a class meeting to discuss the misconduct. Gant ex rel. Gant v.

Wallingford Bd. of Educ., 195 F.3d at 145. Here, although Couture was Nicholas’s

classroom teacher, the DiStisos’ complaints of student physical misbehavior during first

grade pertained to matters that Couture did not witness, and that occurred largely, if not

exclusively, in school areas that Couture did not supervise. Under such circumstances, a

teacher who promptly transmits parental complaints up the chain of authority to her principal

cannot be found to have responded in a way that was so “clearly unreasonable” under

established law as to deny qualified immunity. Id. at 141. Certainly, plaintiffs adduced no

evidence that Couture knew or had reason to believe that Cook would not investigate the

transmitted complaints so as to warrant any different conclusion. Thus, this further compels

judgment in favor of Couture on the ground of qualified immunity.

47
III. Conclusion

To summarize, we conclude as follows:

1. With respect to plaintiff’s claims of deliberate indifference by defendants Uccello

and Cook to kindergarten students’ allegedly using racial epithets to disparage a classmate,

these two defendants are not entitled to qualified immunity because there are disputed

questions of fact for which the district court identified sufficient record evidence to support

a verdict in favor of plaintiff.

2. With respect to plaintiff’s claims of deliberate indifference by all defendants to

allegedly racially motivated physical misbehavior by kindergarten and first-grade students

toward a classmate (with the exception of the slapping incident), defendants 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. Couture is further entitled to qualified

immunity on this claim because her transmittal of parental complaints of physical

misbehavior to Cook for investigation cannot be deemed “clearly unreasonable” as a matter

of law.

Accordingly, the district court’s order denying summary judgment is AFFIRMED IN

PART as it pertains to plaintiff’s claims of deliberate indifference by Uccello and Cook to

racial name-calling, and REVERSED IN PART as it pertains to plaintiff’s claims of deliberate

indifference by Uccello, Couture, and Cook to physical misbehavior (with the exception of

48
the slapping incident). The case is REMANDED for further proceedings consistent with this

opinion including the entry of judgment in favor of defendants on the claims of deliberate

indifference to physical misbehavior.

49
POOLER, Circuit Judge, concurring in part and dissenting in part.

I respectfully dissent from the majority’s conclusion that the kindergarten teacher in this

case is entitled to qualified immunity from suit for her alleged deliberate indifference to all but a

single incident of physical harassment that one of her students allegedly suffered while he was in

her class.

Nicholas DiStiso, a kindergarten student who was the only black child in his class, came

home from school one day and told his mother that a girl had slapped him and called him a

“nigger.”1 His mother was infuriated and reported the incident to her son’s teacher, Jacquelyn

Uccello. The abuse, however, was unrelenting. Over the course of the school year, Nicholas

told his father on as many as fifteen occasions that children at school had called him a “nigger.”

The boy’s mother complained several times to her son’s teacher that his classmates were calling

him “the ‘N’ word, dirty hands, [and] blacky.”

In addition to informing the teacher that Nicholas was being called vulgar racial slurs by

children at school, his mother reported repeated incidents in which her son was physically

abused by his classmates. Specifically, the boy’s mother reported to the teacher that Nicholas

had been pinched, kicked, bitten, spit on in the face, and hit by his peers. His mother explained

that her son would “usually . . . come[] home” from school with “dry tears in his eyes.” On one

occasion, Nicholas “came home with a knot so huge on his knee that he should have been

brought to the nurse.” His father testified that he and his wife would see black-and-blue marks

on their child’s body.

1
Throughout this opinion, given the procedural posture of the case, I present and
“constru[e] the evidence in the light most favorable to the [plaintiff] and draw[] all reasonable
inferences in [her] favor.” Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005).

1
 Despite this striking evidence, the majority concludes that no reasonable jury could

possibly find that this young boy’s teacher knew that the physical abuse this young boy suffered

at the hands of his classmates, aside from the slapping incident, was racially motivated because

the teacher was never explicitly told that the students who abused Nicholas did so because he

was black and because there were no other circumstances that could possibly have made clear to

this teacher that the abuse was motivated by his race. I disagree.

While the majority dismisses the repeated physical abuse at issue in this case as

“commonplace” and “routine,” Majority Op. at 42, I believe that a jury could conclude that the

serious and sustained abuse allegedly suffered by this little boy was anything but ordinary.

Moreover, his teacher had specifically been told on multiple occasions that this particular

child—the only black child in his class—had been called vicious racial epithets by his

classmates, and on one occasion had even been told that a girl in his class slapped him in the face

and called him a racial slur. In other words, Uccello had been told that the racially-motivated

verbal abuse had, at least on one occasion, escalated into a physical assault.

In this context, I believe a jury could conclude that this boy’s teacher did not need to be

explicitly told that subsequent acts of physical abuse—which a jury might find were far from

commonplace—were similarly motivated by the boy’s race in order to conclude that he was in

fact being harassed, both physically and verbally, because he was black. Put simply, I believe

that a jury could find that this teacher used her common sense and connected the dots. See Gant

ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 141 n.6 (2d Cir. 1999) (“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.”).

2
 For the foregoing reasons, I am unable to agree with the majority’s conclusion that no

reasonable jury could find that Uccello was actually aware that the subsequent physical abuse

Nicholas reportedly suffered, following the slapping incident, was racially-motivated.

Accordingly, I do not believe that Uccello is entitled to qualified immunity from liability for

deliberate indifference to either the verbal or the physical harassment allegedly suffered by

Nicholas in kindergarten.2

2
I assume, arguendo, as the majority does, that these defendants should be entitled to
qualified immunity unless there is a genuine issue of material fact as to whether they were
deliberately indifferent to racial harassment that was “severe, pervasive, and objectively
offensive,” Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999),
given our decision in Gant not to address the question of whether the standard articulated in
Davis applied to claims that a student’s constitutional rights under the Equal Protection Clause
were violated, see Gant, 195 F.3d at 141 n.5 (“We need not—and do not—decide whether mere
name-calling is insufficient in the equal protection setting as well . . . .”). Nonetheless, I believe
that a reasonable jury could conclude that the subsequent physical abuse at issue here was
sufficiently severe and pervasive within the meaning of Davis.

3