Zeno v. Pine Plains Central School District

10-3604-cv
Zeno v. Pine Plains Cent. Sch. Dist.
U NITED S TATES C OURT OF A PPEALS
F OR THE S ECOND C IRCUIT
August Term 2011
(Argued: October 21, 2011 Decided: December 3, 2012)
Docket No. 10-3604-cv
_____________________
A NTHONY Z ENO ,
Plaintiff-Appellee,
V.
P INE P LAINS C ENTRAL S CHOOL D ISTRICT ,
Defendant-Appellant.
_____________________
O N A PPEAL FROM THE U NITED S TATES D ISTRICT C OURT
F OR THE S OUTHERN D ISTRICT OF N EW Y ORK
Before:
C ABRANES , L IVINGSTON , and C HIN , Circuit Judges.
Appeal from orders of the United States District
Court for the Southern District of New York (Davison, Mag.
J.) denying defendant-appellant's motion for judgment as a
matter of law and granting remittitur of the jury's award
of damages pursuant to Title VI of the Civil Rights Act of
1964 to $1 million.
A FFIRMED .
_____________________
S TEPHEN B ERGSTEIN , Bergstein & Ullrich, LLP,
Chester, New York, for Plaintiff-
Appellee.
J OHN F RANCES M OORE , Towne, Ryan & Partners,
P.C., Albany, New York, for
Defendant-Appellant.
Jay Worona, Pilar Sokol, Latham, New
York, for Amicus Curiae New York
State School Boards Association,
Inc.
Thomas E. Perez, Assistant Attorney
General, Samuel R. Bagenstos,
Principal Deputy Assistant Attorney
General, Dennis J. Dimsey, Erin H.
Flynn, Attorneys, U.S. Department of
Justice, Charles P. Rose, General
Counsel, Department of Education,
Washington, District of Columbia,
for Amicus Curiae United States.
_____________________
C HIN , Circuit Judge:
During his freshman year of high school,
plaintiff-appellee Anthony Zeno ("Anthony") transferred to
Stissing Mountain High School ("SMHS") in Pine Plains, New
York. SMHS was a part of defendant-appellant Pine Plains
Central School District (the "District"). His fellow
students harassed him for the next three-and-a-half years.
He brought this action below, contending that the District
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was deliberately indifferent to his harassment. A jury
found the District liable for violating Title VI of the
Civil Rights Act of 1964 ("Title VI") and awarded Anthony
$1.25 million in damages.
The district court (Davison, Mag. J.) 1 denied the
District's motion for judgment as a matter of law pursuant
to Fed. R. Civ. P. 50(b), but it granted remittitur of the
jury award to $1 million. The District appeals. We
affirm.
BACKGROUND
A. The Facts
We construe the facts in the light most favorable
to Anthony. See, e.g., Townsend v. Benjamin Enters., Inc.,
679 F.3d 41, 51 (2d Cir. 2012).
1. Freshman Year (January 2005 -- June 2005)
In January 2005, when he was sixteen years old,
Anthony moved from Long Island to Pine Plains, in Dutchess
County. He enrolled at SMHS, a racially homogenous school
where minorities represented less than five percent of the
1
Both parties consented to jurisdiction by a
magistrate judge.
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student population. For the several years preceding
Anthony's enrollment, SMHS was devoid of bias-related
disciplinary incidents. That changed after Anthony -- who
is dark-skinned and biracial (half-white, half-Latino) --
began attending SMHS.
In February 2005, a few weeks after Anthony's
arrival, a student -- a stranger to Anthony -- charged
toward him, screaming that he would "rip [Anthony's] face
off and . . . kick [his] ass," and that "[w]e don't want
your kind here." Other students held the aggressor back,
while unidentified students in the crowd called Anthony a
"nigger" and told him to go back to where he came from.
After this first incident, Anthony's mother,
Cathleen Zeno ("Mrs. Zeno"), voiced her concerns to SMHS
principal John Francis Howe. Howe told Mrs. Zeno that
"this is a small town and [] you don't want to start
burning your bridges."
For the rest of the year, Anthony was subjected to
numerous racial comments and harassment at the school. For
example, a student stripped a necklace from Anthony's neck,
breaking it. The student claimed the incident was merely a
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joke and offered an apology: "Whoops, didn't mean to break
your piece of fake rapper bling bling."
Anthony repeatedly reported the incidents to
school officials. Mrs. Zeno wrote to District
Superintendent Dr. Linda Kaumeyer and the school board,
raising concerns about students' "verbal racial attacks and
physical abuse" on Anthony and his younger sister, who was
also a student in the District. Kaumeyer neither offered
to meet with Mrs. Zeno nor informed Howe of the letter.
Beyond disciplining each student involved in
incidents during this semester with a warning or
suspension, the District did not implement other remedial
measures in response to the student harassment of Anthony.
2. Sophomore Year (August 2005 -- June 2006)
a. Escalating Harassment
Throughout Anthony's second year at SMHS, student
harassment continued. In addition to the pervasive hallway
harassment reported by Anthony, specific incidents revealed
escalating racial tensions at SMHS.
For example, a football teammate punched Anthony
as he told him that "he was going to kick [Anthony's] black
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ass." Another student, in the cafeteria, told Anthony,
"You fucking nigger. Go back to where you came from." The
student picked up a chair, and started to throw it at
Anthony before he was restrained. On yet another occasion,
Anthony walked into the school bathroom to find graffiti on
the walls warning: "Zeno is dead" and "Zeno will die."
Then, in December 2005, another football teammate
circulated a homemade rap CD at SMHS. The CD used racial
("nigger"), anti-Semitic, and sexually-charged language.
Anthony, like many of his peers, received a copy.
Harassment of Anthony continued the following
semester. In January 2006, a faculty member reported
frequent racial comments in Anthony's art class. For
example, a classmate repeatedly called Anthony "homey" and
"gangster," referred to "the hood," and made stereotypical
remarks such as "what's up my nigger" and "you're so
ghetto." Then, in February 2006, the student who had
broken Anthony's necklace and another student tampered with
Anthony's locker. When Anthony later opened his locker,
the metal door fell off, hitting him on the head. The
students had also filled the locker with garbage, which
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spilled onto Anthony and the floor. Moreover, on at least
two separate occasions, students taunted Anthony in a
racial manner with references to lynching -- displaying a
noose or threatening to take a rope to the nearest tree.
In response to these incidents, the District
suspended the students involved, typically for five days.
Twice, Anthony obtained Orders of Protection. The District
moved one student to another school.
b. Additional Reports of Harassment
During his sophomore year, Anthony faced
additional harassment, which he repeatedly reported to
school officials. In fact, halfway through the year, he
told faculty and staff: "I'm tired of this -- I can't take
any more of it, I have to stop this -- This has been going
on forever."
Similarly, by letter to Superintendent Kaumeyer
dated September 19, 2005, Mrs. Zeno described "verbal
attacks includ[ing] racial slurs and threats to their
lives" and physical attacks so violent that SMHS called the
police. Kaumeyer did not call or meet with Mrs. Zeno, but
she responded in writing. Principal Howe responded by
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asking staff members and teachers to keep an eye on Anthony
and to reach out to him.
In addition, the Zenos' lawyer and members of the
community notified the District about the harassment. In
October 2005, Marilynn A. Vetrano of the Dutchess County
Human Rights Commission (the "HRC") wrote Kaumeyer,
referring to "a complaint of alleged racism related
incidents." Around this time, Anthony's lawyer, Michael H.
Sussman, also contacted the District. Sussman a sked SMHS
to do two things: (1) provide Anthony with a shadow, who
would accompany him at school, and (2) implement racial
sensitivity programs to underscore the District's zero
tolerance of racism and bias.
In November 2005, Vetrano and Elouise Maxey of the
Dutchess County N.A.A.C.P. met with Kaumeyer and with Howe.
At both meetings, Vetrano and Maxey reiterated the Zenos'
requests for a shadow and racial sensitivity programs . In
addition, they offered to provide these options at no cost.
-8-
The District, however, declined to assign Anthony a shadow
and chose not to implement the HRC's training program. 2
After meeting with Vetrano and Maxey, Howe
discussed Anthony's progress and transition to the District
with his teachers. He learned that in Anthony's art class,
"[r]acial comments [were made] all the time." In addition,
a teacher indicated that Anthony's presence "just makes it
worse."
At the end of the school year, the District
prepared an Individualized Education Program ("IEP") for
Anthony. The IEP noted that "Anthony has been struggling
with acceptance in the school environment. There have been
numerous incidents between Anthony and others with
prejudicial or racial overtones." After the IEP was
finalized, Special Education Director Maryanne Stoorvogel
(who prepared the IEP), teachers, and other school
officials discussed the IEP with Mrs. Zeno. At this
2
The District was considering a program run by
McGrath Training Systems. The program ultimately
implemented by the District was a one-day program (rather
than a series of programs), focused largely on bullying and
sexual harassment, and was implemented in February 2006,
over three months later.
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meeting, Mrs. Zeno also raised additional concerns
regarding the bias Anthony continued to encounter at
school.
c. Additional District Actions
Stoorvogel, who was aware of the "numerous
incidents . . . with prejudicial or racial overtones"
concerning Anthony, never investigated the harassment. As
the District's Title IX compliance officer, Stoorvogel was
charged with investigating alleged violations of both Title
IX of the Education Amendments of 1972 ("Title IX") and
Title VI. 3 Nevertheless, she did not follow up or respond
to these complaints.
Stoorvogel was also part of a group (which
included Kaumeyer and other District-wide administrators)
that met on a biweekly basis to discuss issues of internal
importance. Throughout Anthony's sophomore year -- even
3
Title IX of the Education Amendments of 1972
("Title IX") prohibits discrimination on the basis of sex.
20 U.S.C. § 1681(a). By contrast, Title VI of the Civil
Rights Act of 1964 ("Title VI") prohibits, inter alia,
discrimination on the basis of race, color, or nationa l
origin. 42 U.S.C. § 2000d.
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after the graffiti on the bathroom wall, the comments about
lynching, the noose, and other incidents -- the
administrators never discussed racial harassment,
generally, or Anthony, specifically.
In February 2006, the District coordinated a
mediation between Mrs. Zeno and Anthony's antagonists and
their respective parents. The District neglected, however,
to notify Mrs. Zeno of the date or time of the mediation,
and she did not attend. Moreover, the prospective mediator
was not trained in bias awareness or diversity, issues at
the core of the harassment.
The District also implemented separate one-day
programs for faculty and staff, students, and parents, run
by McGrath Training Systems. The course was called
"Altering the Culture of Cruelty: A Legally Based Bullying
and Harassment Prevention Program." The program discussed
bullying and sexual harassment, but despite being
customized for the District, its treatment of race and
discrimination was tangential at best.
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The District never implemented discrimination -,
bias-, diversity-, or race-specific programs during the
2005-2006 academic year.
3. Junior Year (August 2006 -- June 2007)
In the fall of 2006, Anthony was subjected to more
hallway harassment in school. He reported it to the
District less frequently, however, because "[n]othing was
being done, and it's been already three years." Mrs. Zeno
again contacted Kaumeyer, by letter dated October 24, 2006,
hoping to discuss solutions to her son's continued
harassment. Kaumeyer again did not call Mrs. Zeno or meet
with her, but she responded in writing a few days later.
In addition to the hallway harassment, in Janu ary
2007, a student threatened to "kick [Anthony's] black ass"
and repeatedly threatened to rape his younger sister.
Anthony threw a punch. The District punished Anthony, but
not the instigator. Then, in February 2007, SMHS's drama
club planned to reenact a TV show, "Married With Children."
When Anthony was assigned his role, another student
commented that Anthony would fit the role "if it was like a
black gangster."
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Anthony also began spending part of his junior
year with the Boards of Cooperative Educational Services
("BOCES") program. 4 As he travelled to the off-campus
program, students on the BOCES bus repeatedly called him a
"nigger." Anthony informed the District about these
incidents, but even when a particular student was
disciplined, the harassment continued because "if it wasn't
the same kid, it would always be someone replacing that
kid, because they were all connected."
The District responded by hiring James Childs of
JaRa Consulting, who planned to conduct student focus
groups, administer surveys, and meet with staff, parents,
and community members to increase diversity awareness.
Childs was also supposed to train faculty and staff on the
importance of acknowledging racial diversity and
recognizing racial stereotypes, and to train students on
diversity issues. During the entire school year, however,
4
The Boards of Cooperative Educational Services
("BOCES") of New York State encourage school districts to
collaborate when creating vocational programs. These
programs are shared by students among participating
districts. N.Y.S. Dep't of Educ., Boards of Cooperative
Educational Services (BOCES), (Nov. 7, 2012, 2:37 PM),
http://www.p12.nysed.gov/mgtserv/boces/.
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Childs only did preliminary work and held no training
sessions. 5
The District also reorganized STOP ("Students and
Teachers Opposed to Prejudice"), a student extracurricular
activity that had been defunded.
4. Senior Year (August 2007 -- June 2008)
During Anthony's fourth year, he reported fewer
incidents of harassment to SMHS authorities. When
incidents did occur, however, they were serious. For
example, at an SMHS football game in September 2007, a
student called Anthony's sister a "slut" and threatened to
kick Anthony's "black ass." Anthony and this student began
to fight. Anthony's friend tried to intervene and break up
the fight when another student suddenly "jumped" Anthony's
friend, choking him until he lost consciousness. Off -duty
officers broke up the fight. The student who choked
Anthony's friend ultimately received a 45-day suspension.
Students continued to call Anthony a "nigger" in
the hallways "all the time," and he reported these comments
5
Childs's sensitivity training for students finally
took place during the 2007-2008 school year.
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to Howe. Similarly, he encountered continued racial
harassment on the bus to his off-campus BOCES program.
During the 2007-2008 academic year, Childs's
preliminary work finally resulted in sensitivity training
sessions for students. Students were randomly selected to
participate but could opt out. The District also
instituted "Project Wisdom," which consisted of reading a
"short message containing a quotation from a historic
figure, celebrity, modern hero, or other notable voice that
reinforce[d] the topic of the day." These messages were
read over the school's public address system each morning,
and although some messages addressed racism and prejudice,
the messages focused primarily on "civic and personal
values."
Finally, on two occasions, the District invited
Camfel Productions to produce student assemblies addressing
character education. These assemblies focused on respect,
bullying, prejudice, and decision making, and also
discussed racism and racial harassment.
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B. Anthony Accepts an IEP Diploma
At the beginning of his fourth year, Anthony and
his family faced a choice. Anthony was short of the
credits required to graduate. He was entitled to stay in
the District until he turned twenty-one and try to satisfy
the Regents diploma requirements. Based on his historic
progress, however, it was unclear whether , even with more
time, Anthony could earn the requisite credits in math.
Rather than endure further harassment and try to
graduate with a Regents diploma, Anthony could also accept
an IEP diploma. Students with IEP diplomas can attend
certain community colleges, but employers, the military,
four-year colleges, apprenticeship programs, and business
or trade schools generally do not accept them.
Mrs. Zeno expressed concern about the IEP diploma,
but she felt she had no choice: "I couldn't allow Anthony
to do another two years in that school and be subjected to
that abuse. . . . [H]e was being torn apart by these
tormentors in attacking his color . . . the way he looked."
While Anthony was enrolled at SMHS, Mrs. Zeno met with Howe
between thirty and fifty times. The school never offered
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proactive solutions; on the contrary, Howe told Mrs. Zeno
that he was unsure of how to keep Anthony safe on a daily
basis. He claimed that "he could only think of the short
term, and that he would try to take every incident as [it]
came and deal with it as [it] came."
Anthony finished his senior year as part of the
BOCES program and graduated with an IEP diploma. His
education at the District was complete.
C. Proceedings Below
On July 18, 2007, Anthony commenced this action
against the District alleging discrimination in violation
of Title VI. After discovery, the District moved for
summary judgment. The district court denied the motion on
May 20, 2009.
Trial commenced on March 8, 2010. After Anthony
rested, the District orally moved for judgment as a matter
of law. The court denied the motion, ruling from the
bench. On March 12, 2010, the jury returned its verdict,
finding that the District had violated Anthony's civil
rights under Title VI, and awarding him $1.25 million in
damages.
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On April 13, 2010, the District renewed its
earlier motion for judgment as a matter of law, and also
moved for a new trial, a new trial limited to damages, or a
remittitur of the jury award. By an August 5, 2010
memorandum and order, the district court granted the
District's motion for a new trial, subject to Anthony's
accepting a reduced award of $1 million. Anthony agreed to
accept the reduced award on August 9, 2010, and the
district court directed the Clerk of the Court to enter
judgment in the sum of $1 million, as well as costs and
fees, in favor of Anthony. The District filed its notice
of appeal on September 3, 2010. 6 The district court entered
an amended final judgment on September 9, 2010. 7
6
Although the District filed a premature notice of
appeal, because the district court entered an amended final
judgment before the appeal was heard and Anthony suffered
no prejudice, the jurisdictional defect has been cured.
See, e.g., Sahu v. Union Carbide Corp., 475 F.3d 465, 468
(2d Cir. 2007) (per curiam); see also Fed. R. App. P.
4(a)(2) ("A notice of appeal filed after the court
announces a decision or order -- but before entry of the
judgment or order -- is treated as filed on the date of and
after the entry.").
7
We reserved decision on this appeal pending the
outcome in DiStiso v. Cook, 691 F.3d 226 (2d Cir. 2012), an
appeal from a denial of summary judgment on the ground of
qualified immunity with respect to claims alleging that
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DISCUSSION
The District advances two principal arguments on
appeal. First, it contends that the district court erred
by denying its motion for judgment as a matter of law.
Second, and in the alternative, it argues that the damages
award, as reduced, was still excessive. We address both of
these arguments in turn.
A. The District's Liability for Student-on-Student
Harassment Under Title VI
The District contends that, as a matter of law, it
was not deliberately indifferent to student harassment of
Anthony. Specifically, it argues that (1) it reasonably
responded to each reported incident, (2) it was under no
obligation to implement the reforms requested by Anthony 's
lawyer, and (3) it never knew that its responses were
inadequate or ineffective. Hence, it asserts that, on the
faculty and administration had been deliberately
indifferent to peer harassment in violation of 42 U.S.C.
§ 1983. This Court affirmed in part and reversed in part,
remanding the case for further proceedings.
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record presented, no reasonable jury could have returned a
finding of liability. We disagree.
1. Applicable Law
We review de novo a district court's denial of a
judgment as a matter of law. See, e.g., Jones v. Town of
E. Haven, 691 F.3d 72, 80 (2d Cir. 2012); Townsend, 679
F.3d at 51. A court may grant judgment as a matter of law
only if it finds that "a reasonable jury would not have a
legally sufficient evidentiary basis" for its decision.
Fed. R. Civ. P. 50(a)(1). Therefore, we will only reverse
a district court's denial of a motion for judgment as a
matter of law if, drawing all inferences in favor of, and
reviewing all evidence in the light most favorable to, the
plaintiff, no reasonable juror could have returned a
verdict for the plaintiff. See, e.g., Townsend, 679 F.3d
at 51; Manganiello v. City of New York, 612 F.3d 149, 161
(2d Cir. 2010).
Title VI prohibits a recipient of federal funds
from discriminating on the basis of race, color, or
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national origin. 8 See 42 U.S.C. § 2000d. Public
educational institutions that receive federal funds are
subject to this mandate. 34 C.F.R. § 100.13(i) (2000)
(defining "recipient" to include any public "agency,
institution, or organization, or other entity . . . in any
State, to whom Federal financial assistance is extended");
see also id. § 100.13(g)(2)(ii).
Title VI prohibits intentional violations of the
statute. See Alexander v. Sandoval, 532 U.S. 275, 280-81
(2001) (citing Alexander v. Choate, 469 U.S. 287, 293
(1985)). In certain circumstances, courts view actions of
a third party as intentional violations by the funding
recipient itself. See, e.g., Davis ex rel. Lashonda D. v.
Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643 (1999) (board
of education can be liable for student-on-student
harassment under Title IX); Gebser v. Lago Vista Indep.
Sch. Dist., 524 U.S. 274, 290-91 (1998) (school district
8
The statute provides: "No person in the United
States shall, on the ground of race, color, o r national
origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial
assistance." 42 U.S.C. § 2000d; see also 34 C.F.R. §
100.3(a) (2000).
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can be liable for teacher-on-student harassment under Title
IX). 9 For example, in the educational setting, a school
district is liable for intentional discrimination when it
has been "deliberately indifferent" to teacher or peer
harassment of a student. See, e.g., Davis, 526 U.S. at
643; Gebser, 524 U.S. at 290-91; Papelino v. Albany Coll.
of Pharmacy of Union Univ., 633 F.3d 81, 88-89 (2d Cir.
2011) (teacher-on-student sexual harassment claim under
Title IX could survive summary judgment).
The deliberate indifference standard outlined by
the Supreme Court in Davis v. Monroe County Board of
Education is a narrow one. See 526 U.S. at 644-45 (Title
IX "cabins the range of misconduct" prohibited, and a
school district's liability is limited). Liability only
arises if a plaintiff establishes: (1) substantial
control, (2) severe and discriminatory harassment, (3)
9
Historically, the Supreme Court has applied
parallel analyses to claims brought under Title IX and
Title VI. See, e.g., Barnes v. Gorman, 536 U.S. 181, 185
(2002) ("[T]he Court has interpreted Title IX consistently
with Title VI . . . ." (citing Cannon v. Univ. of Chi., 441
U.S. 677, 694-98 (1979))).
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actual knowledge, and (4) deliberate indifference. 10 See
id., 526 U.S. at 643-50; DiStiso v. Cook, 691 F.3d 226,
240-41 (2d Cir. 2012) (listing three factors, but assuming
control, in Title IX case).
A school district will be subject to liability for
third-party conduct only if it "exercises substantial
control over both the harasser and the context in which the
known harassment occurs." Davis, 526 U.S. at 644-45(reasoning that the school must have "control over the
alleged harassment" and "authority to take remedial
10
Although the harassment in Davis, and the
"deliberate indifference" standard outlined by the Supreme
Court, arose under Title IX, we have endorsed the Davis
framework in cases of third-party harassment outside the
scope of Title IX. See, e.g., DiStiso, 691 F.3d at 226
(violation of section 1983); Hayut v. State Univ. of N.Y.,
352 F.3d 733 (2d Cir. 2003) (violation of 14th Amendment
Equal Protection Clause); Gant ex rel. Gant v. Wallingford
Bd. of Educ., 195 F.3d 134 (2d Cir. 1999) (violation of
section 1981). We now apply Davis's deliberate
indifference standard to Anthony's Title VI claim. See
also Bryant v. Indep. Sch. Dist. No. I-38 of Garvin Cnty.,
334 F.3d 928, 934 (10th Cir. 2003) (applying Davis to a
Title VI student-on-student harassment claim); Saxe v.
State Coll. Area Sch. Dist., 240 F.3d 200, 206 n.5 (3d Cir.
2001) (acknowledging that Davis "applies equally" to
harassment under Title VI or other federal anti-
discrimination statutes).
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action"). A school district, the Supreme Court noted,
exercises substantial control over the circumstances of the
harassment when it occurs "during school hours and on
school grounds." Id. at 646. Similarly, a school
district's authority to take remedial action lies in its
longstanding disciplinary oversight over its students.
See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 342 n.9
(1985); Tinker v. Des Moines Indep. Comm. Sch. Dist., 393
U.S. 503, 507 (1969).
Even assuming the requisite level of control, not
all harassment is actionable. The harassment must be
"severe, pervasive, and objectively offensive" and
discriminatory in effect. Davis, 526 U.S. at 650-51; see
also DiStiso, 691 F.3d at 242 (acknowledging "severity
requirement"). Discrimination under Title VI is not
limited to being excluded from, or denied the benefits of,
a particular school program. See 42 U.S.C. § 2000d; 34
C.F.R. § 100.3(a). Discriminatory actions "[r]estrict an
individual in any way in the enjoyment of any advantage or
privilege enjoyed by others receiving any service,
financial aid, or other benefit" under the school system.
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34 C.F.R. § 100.3(b)(1)(iv); see also id. §
100.13(g)(2)(ii). Educational benefits include an academic
environment free from racial hostility. See Hayut, 352
F.3d at 750 ("We also find that . . . [misconduct that]
simply created a disparately hostile educational
environment relative to her peers . . . could be c onstrued
as depriving [the victim] of the benefits and educational
opportunities available at [the school].").
In addition, a school district must know of the
harassment. Constructive knowledge is not enough; only
actual knowledge is a predicate to liability. See Davis,
526 U.S. at 641-43; Gebser, 524 U.S. at 288.
Finally, "only deliberate indifference to
[student-on-student] harassment can be viewed as
discrimination by school officials themselves ." Gant, 195
F.3d at 140 (citing Davis, 526 U.S. at 643-44). The
school's action -- or inaction -- must, "at a minimum,
cause students to undergo harassment or make them liable to
or vulnerable to it." Davis, 526 U.S. at 645 (internal
quotation and alteration omitted).
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A finding of deliberate indifference depends on
the adequacy of a school district's response to the
harassment. See Hayut, 352 F.3d at 750. A failure to
respond, see id. at 751, a response that "only follows
after a lengthy and unjustified delay," id. (internal
quotation omitted), and a response that "amount[s] to
deliberate indifference to discrimination ," Gebser, 524
U.S. at 290, have all been found inadequate.
Nevertheless, a school district's actions are only
deliberately indifferent if they were "clearly unreasonable
in light of the known circumstances." Davis, 526 U.S. at
648; Gant, 195 F.3d at 141. Thus, when weighing the
adequacy of a response, a court must accord sufficient
deference to the decisions of school disciplinarians. See
Davis, 526 U.S. at 648 ("[C]ourts should refrain from
second-guessing the disciplinary decisions made by school
administrators." (citation omitted)); cf. Tinker, 393 U.S.
at 507. To that end, victims do not have a right to
specific remedial measures. See Davis, 526 U.S. at 648.
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2. Application
To successfully challenge the district court's
denial of its motion for judgment as a matter of law , the
District must demonstrate that no reasonable jury could
have found that: (1) it had the requisite control, (2) the
harassment was severe and discriminatory, (3) it had actual
knowledge, and (4) it responded inadequately to the
harassment. The District argues that: (1) it responded
swiftly and unequivocally to each reported incident of
harassment; (2) its response was not deliberately
indifferent merely because it did not implement shadowing
or expel the harassers; and (3) it never knew that its
responses were ineffective or inadequate. We consider
these arguments by addressing: first, whether Anthony was
subjected to actionable harassment, and, second, whether --
if so -- the District was deliberately indifferent.
a. Actionable Harassment
On the record below, reasonable jurors could have
found the harassment Anthony suffered to be "severe,
pervasive, and objectively offensive." Davis, 526 U.S. at
650-51. The evidence presented at trial demonstrated that ,
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from 2005 through 2008, many students in the District
taunted, harassed, menaced, and physically assaulted
Anthony. His peers made frequent pejorative references to
his skin tone, calling him a "nigger" nearly every day.
They also referred to him as "homey" and "gangster," while
making references to his "hood" and "fake rapper bling
bling." He received explicit threats as well as implied
threats, such as references to lynching.
Hence, the jury reasonably could have found that
the harassment Anthony endured went beyond the non-
actionable "simple acts of teasing and name-calling among
school children." Davis, 526 U.S. at 652 (noting such
harassment is insufficient to support a private rig ht of
action); DiStiso, 691 F.3d at 242-43 ("Defendants do not --
and cannot -- dispute that such conduct, particularly use
of the reviled epithet 'nigger,' raises a question of
severe harassment going beyond simple teasing and name -
calling."). Furthermore, the evidence showed more than
mere verbal harassment; Anthony also endured threats and
physical attacks. Finally, the harassment continued for
over three-and-a-half years. Accordingly, the jury surely
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could have concluded that the harassment was severe,
pervasive, and objectively offensive. See C.S. v. Couch,
843 F. Supp. 2d 894, 908 (N.D. Ind. 2011) (ten instances of
racial slurs and violence over four-and-a-half years could
be perceived as sufficiently severe); see also Davis, 526
U.S. at 653-54 (vulgar comments and sexually harassing
conduct over five months was sufficiently severe to state a
claim); Doe ex rel. A.N. v. E. Haven Bd. of Educ., 430 F.
Supp. 2d 54, 59-61 (D. Conn. 2006) (affirming jury verdict
against school district where victim was sexually harassed
by peers for three months after a sexual assault).
In addition, the jury reasonably could have
concluded that as a result of the harassment, Anthony was
discriminatorily deprived of three educational benefits.
First, Anthony was deprived of a supportive, scholastic
environment free of racism and harassment. See Hayut, 352
F.3d at 750 (creating a "disparately hostile educational
environment relative to [a student's] peers" may be
construed as a deprivation of educational benefits or
opportunities).
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Second, Anthony accepted an IEP diploma rather
than pursue further studies at SMHS. See Trial Tr. 88:10-
12 (Mar. 8, 2010) ("I couldn't allow Anthony to do another
two years in that school and be subjected to that abuse.");
2006-2007 Anthony Zeno IEP, Pl.'s Trial Ex. 51, at 9. The
IEP diploma was less likely to be accepted by employers or
four-year colleges. See N.Y. Comp. Codes R. & Regs. tit.
8, § 100.5(b)(7)(iii) (2012) ("Earning . . . an [IEP]
diploma . . . shall not be deemed to be equivalent to
receipt of a high school diploma . . . ."). Thus, the
harassment effectively deprived Anthony of a Regents
diploma, a "benefit" provided by the District.
Finally, Anthony was driven to leave SMHS, the
high school he had attended for three-and-a-half years,
without completing his education. Where, as here, the
decision to withdraw was motivated by a racially hostile
educational environment, a strong nexus between the
harassment and the deprivation of educational benefits is
evident. See Hayut, 352 F.3d at 750 (conduct causing
student to withdraw from university could be interpreted as
deprivation of educational benefits or opportunities).
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Thus, the evidence presented at trial was
sufficient to support the jury's conclusion that Anthony
was subjected to actionable harassment.
b. Knowledge, Control, and Adequacy of Response
We turn now to the District's knowledge of,
control of, and response to the harassment.
With respect to the District's actual knowledge of
the ongoing harassment, the record reflects that it
received reports of harassment affecting Anthony from many
quarters. First, faculty and staff members at the District
reported numerous incidents to Howe during Anthony's first
two years at SMHS. Second, Anthony also reported racial
harassment in the hallways throughout his three-and-a-half
years at SMHS. Third, during that same time period, Mrs.
Zeno contacted school administrators between thirty and
fifty times. Fourth, various third parties -- the Dutchess
County HRC, the Dutchess County N.A.A.C.P., the Zenos'
attorney, and the police -- raised the issue of students
harassing Anthony with the District. Hence, on this
record, the jury easily could have found that the District
actually knew of the continuing harassment of Anthony.
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In addition, the record supports the jury's
finding that the District had "substantial control" over
the circumstances of the harassment Anthony endured. The
incidents described above occurred on SMHS grounds or its
property (such as the buses to BOCES) -- including, for
example, shouts of "nigger" in the hallways, death threats
in the classroom or bathroom, and an attempted assault with
a chair in the cafeteria. See Davis, 526 U.S. at 646(school has control over harassment that occurs "duri ng
school hours and on school grounds").
A reasonable jury could have also concluded that
the District exercised the requisite control because
Anthony's harassers were students. Because school
officials are charged with "prescrib[ing] and control[ling]
conduct in the schools," cf. Tinker, 393 U.S. at 507, the
District had disciplinary oversight over the harassers.
Hence, the District had "substantial control" over the
harassment.
The third and principal issue facing the jury was
whether the District was deliberately indifferent to the
student-on-student harassment. The District's responses to
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the harassment of Anthony took two forms: immediate
discipline of Anthony's identified harassers and, later,
various non-disciplinary responses.
The District argues that its disciplinary response
could not constitute deliberate indifference because it
immediately suspended nearly every student who was
identified as harassing Anthony. In addition, it contacted
students' parents or withdrew privileges (such as the right
to participate in extracurricular activities). The
District notes that only two students were identified as
repeat offenders, and reported incidents declined after
March 2006.
In some circumstances, prompt disciplinary action
against a student's identifiable harassers may show that a
school district was not deliberately indifferent. 11 The
11
See, e.g., Fitzgerald v. Barnstable Sch. Comm.,
504 F.3d 165, 173-74 (1st Cir. 2007) (prompt response to
harassment, immediate investigation, proposed remedial
measures, and cooperation with police -- who recommended no
further action -- were not deliberately indifferent
responses), rev'd on other grounds by, 555 U.S. 246 (2009);
Porto v. Town of Tewksbury, 488 F.3d 67, 74 (1st Cir. 2007)
(separating harasser and victim, and involving the guidance
counselor, were not deliberately indifferent responses to
peer sexual harassment, even if ineffective); Doe ex rel.
Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 388-89 (5th
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sufficiency of a response, however, must be considered "in
light of the known circumstances," DiStiso, 691 F.3d at 241
(internal quotation omitted); accord Hayut, 352 F.3d at
751; Gant, 195 F.3d at 141, and as the "known
circumstances" change, the sufficiency of a response may
also have to evolve.
Here, five circumstances should have informed the
District's continued response to student harassment of
Anthony. First, it knew that disciplining Anthony's
harassers -- through suspensions or otherwise -- did not
deter others from engaging Anthony in serious and offensive
racial conduct. (During his sophomore year alone, Anthony
was subject to eight separate incidents of harassment.)
Second, the harassment directed at Anthony grew
increasingly severe. Of the eight incidents that occurred
during his sophomore year, two were violent, three were
threats on his life, and two resulted in Orders of
Protection against the students involved. Third, the
disciplinary action had little effect, if any, on the
Cir. 2000) (ineffective or negligent response was not
deliberate indifference).
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taunting and other hallway harassment, which persisted
until Anthony left SMHS, three-and-a-half years after he
arrived. Fourth, the District knew that the harassment
predominantly targeted Anthony's race and color. And
fifth, as early as November 2005, the Dutchess County HRC
and N.A.A.C.P. offered the District both a free shadow, to
accompany Anthony during the school day, and a free racia l
sensitivity training series.
At the conclusion of the trial, the district court
instructed the jury regarding deliberate indifference as
follows:
Deliberate indifference means that the defendant's
response or lack of response to the alleged
harassment was clearly unreasonable in light of
the known circumstances. Deliberate indifference
may be found where a defendant takes remedial
action only after a lengthy and unjustifiable
delay or where defendant's response was so
inadequate or ineffective that discriminatory
intent may be inferred. In other words,
deliberate indifference requires a finding that
the District's actions or inactions in response to
known harassment effectively caused further
harassment to occur.
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Trial Tr. 730:6-15 (Mar. 11, 2010). 12 The jury was entitled
to evaluate the District's response in light of this
instruction and all the evidence presented.
Responses that are not reasonably calculated to
end harassment are inadequate. See, e.g., Vance v. Spencer
Cnty. Pub. Sch. Dist., 231 F.3d 253, 262 (6th Cir. 2000)
("Where a school district has actual knowledge that its
efforts to remediate are ineffective, and it continues to
use those same methods to no avail, such district has
failed to act reasonably in light of the known
circumstances."); Doe v. Sch. Bd. of Broward Cnty., 604
F.3d 1248, 1261 (11th Cir. 2010) (endo rsing Sixth Circuit's
approach). The jury could have found and apparently did
find that the District's remedial response was inadequate
-- and deliberately indifferent -- in at least three
respects.
First, although the District disciplined many of
the students who harassed Anthony, it dragged its feet
12
Neither party objected to the substance or form of
this instruction, Trial Tr. 735:13 to 736:3 (Mar. 11,
2010), which accurately summarized the state of the law,
see generally Davis, 526 U.S. 629; Gebser, 524 U.S. 274;
Hayut, 352 F.3d 733.
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before implementing any non-disciplinary remedial action --
a delay of a year or more. 13 While many cases address
delays preceding a school's initial response, once a school
is aware of its ineffective response, a delay before
implementing further remedial action is no less
problematic. See Wills v. Brown Univ., 184 F.3d 20, 26
(1st Cir. 1999) ("[E]vidence of an inadequate response is
pertinent to show fault and causation where the plaintiff
is claiming that she was harassed or continued to be
harassed after the inadequate response."). At some point
after Anthony's first semester, the District should have
done more, and its failure to do more "effectively caused"
13
See, e.g., Davis, 526 U.S. at 644-45; Kracunas v.
Iona Coll., 119 F.3d 80, 90 (2d Cir. 1997) (in Title IX
case, four-to-six month delay could be viewed as
deliberately indifferent), abrogated in part on other
grounds by Gebser, 524 U.S. at 290-91 (1998); Doe ex rel.
Doe v. Coventry Bd. of Educ., 630 F. Supp. 2d 226, 235 (D.
Conn. 2009) (denying motion for summary judgment because a
jury could reasonably conclude deliberate indifference from
six-month delay before school removed sexual assaulter and
harasser from victim's class); Doe ex rel. Doe v. Derby Bd.
of Educ., 451 F. Supp. 2d 438, 447 (D. Conn. 2006) (denying
motion for summary judgment because, in part, a failure to
respond to a student's sexual assault, despite receiving
notice several weeks earlier, could be viewed as d eliberate
indifference).
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further harassment. 14 See Davis, 526 U.S. at 642-43(internal quotation marks omitted). The jury was entitled
to find, and the record shows, that the District's delay in
taking additional action here was unreasonable.
Second, the jury could have reasonably found that
the District's additional remedial actions were little more
than half-hearted measures. For example, it coordinated
mediation, but did not inform Mrs. Zeno when or where it
would be held. Its additional programs either (1) did not
focus on racial bias or prejudice, or (2) made attendance
optional. This was evident in the District's training for
students, parents, and teachers; it was for one day only
and focused on bullying and sexual harassment, rather than
14
The District, in fact, was well aware of its
longstanding legal duty to "take reasonable steps to
eliminate" racial harassment in its schools. Office for
Civil Rights, "Racial Incidents and Harassment Against
Students at Educational Institutions; Investigative
Guidance," 59 Fed. Reg. 11448, 11450 (Mar. 10, 1994); cf.
Office for Civil Rights, "Sexual Harassment Guidance:
Harassment of Students by School Employees, Other Students,
or Third Parties," 62 Fed. Reg. 12034, 12042 (Mar. 13,
1997) ("[A school district] should take immediate a nd
appropriate steps to investigate or otherwise determine
what occurred and take steps reasonably calculated to end
any harassment, eliminate a hostile environment if one has
been created, and prevent harassment from occurring
again."), cited in, Davis, 526 U.S. at 647-48.
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racial discrimination. Likewise, Project Wisdom's morning
announcements were messages meant to inculcate civic and
personal values, rather than address racism and
discrimination. The District's first bias-specific
training (the James Childs program) did not occur until
November 2006, nearly twenty-one months after peer
harassment of Anthony began. Attendance was optional.
Anthony saw none of his harassers at the event. Similarly,
although the District reorganized an extracurricular
student group (STOP) aimed at addressing prejudice, STOP
members were a self-selecting group.
The record indicates that these programs were
selected in lieu of the free shadow or racial sensitivity
training offered by the Dutchess County HRC and N.A.A.C.P.
in November 2005, almost a year earlier and only nine
months after Anthony was first harassed. Although actually
eliminating harassment is not a prerequisite to an adequate
response, Davis, 526 U.S. at 648 ("purging their schools of
actionable peer harassment" is not required); Patterson v.
Hudson Area Schs., 551 F.3d 438, 446 (6th Cir. 2009)
(same), the District's actions could not have plausibly
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changed the culture of bias at SMHS or stopped the
harassment directed at Anthony. A jury was entitled to
compare the alternatives offered by the Dutchess County HRC
and N.A.A.C.P. with the District's programs when it
evaluated the adequacy of the District's ultimate response.
Thus, we conclude that the record supports the jury's
finding that the District's deliberately indifferent
responses effectively caused Anthony's continued
harassment. 15
Finally, despite the District's present argument
that it did not know its responses were inadequate or
ineffective, a jury reasonably could have found that the
District ignored the many signals that greater, more
directed action was needed. For example, although
Stoorvogel, the school officer charged with investigating
15
Because the shadow and racial sensitivity
trainings were remedies requested by the Zenos, the
District contends that it cannot be found deliberately
indifferent merely because it did not implement these
specific responses. We agree. See, e.g., Davis, 526 U.S.
at 648 (no requirement that "administrators . . . engage in
particular disciplinary action"); Gant, 195 F.3d at 141(review of school disciplinary action should not be
transformed into a question of fact). Nonetheless, the
right to select among various appropriate remedies is not
-- by itself -- a shield against liability.
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Title VI complaints, knew that Anthony was being harassed,
she elected not to investigate, which might have prompted
an earlier and adjusted administrative response. Further,
although reported incidents "decreased significantly" after
March 2006, during the thirteen months prior, Anthony had
been menaced, threatened, and taunted. He endured numerous
serious -- and sometimes life-threatening -- incidents of
harassment. Moreover, the District knew that Anthony was
called "nigger" and other racial slurs during his entire
three-and-a-half years at SMHS. The jury was entitled to
conclude that the District knew that greater action was
required.
Reviewing the facts in the light most favorable to
Anthony, we conclude that there was sufficient evidence in
the record to support the jury's finding that the
District's responses to student harassment of Anthony
"amount[ed] to deliberate indifference to discrimination."
Gebser, 524 U.S. at 290. Accordingly, we affirm the
district court's denial of the District's motion for
judgment as a matter of law.
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B. Damages
The District contends that the $1 million award,
as reduced, is excessive. We disagree.
1. Applicable Law
Title VI provides a private right of damages
against a school district for student-to-student harassment
if the school district was deliberately indifferent to the
known harassment. Davis, 526 U.S. at 643-44. This right,
however, is only available for compensatory damages; there
is no remedy for punitive damages. See Barnes v. Gorman,
536 U.S. 181, 187-88 (2002) (finding that neither explicit
nor implied punitive damages provisions can be read into
Title VI).
We have long held that, when damages are awarded,
"calculation of damages is the province of the jury."
Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir. 1990); see also
Walz v. Town of Smithtown, 46 F.3d 162, 170 (2d Cir. 1995).
As a result, we may set aside a jury's award only if it is
"so high as to shock the judicial conscience and constitute
a denial of justice." Manganiello, 612 F.3d at 168(internal quotation omitted). In addition, in reviewing
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damages awards, "[w]e accord considerable deference to the
factual findings of both judge and jury." Blissett v.
Coughlin, 66 F.3d 531, 536 (2d Cir. 1995). Although a
review of comparable cases is appropriate, we need not
average the high and low awards; we focus instead on
whether the verdict lies "within [the] reasonable range."
Ismail, 899 F.2d at 187.
We review a district court's ruling on remittitur
for abuse of discretion. See, e.g., Martinez v. Port Auth.
of N.Y. & N.J., 445 F.3d 158, 160 (2d Cir. 2006) (per
curiam) (applying a "deferential standard of review " to a
lower court's remittitur calculation); Cross v. N.Y.C.
Transit Auth., 417 F.3d 241, 258 (2d Cir. 2005). Our
review is particularly deferential when the district court
applies the least intrusive standard to calculate
remittitur -- granting remittitur "only to the maximum
amount that would be upheld by the district court as not
excessive." Earl v. Bouchard Transp. Co., Inc., 917 F.2d
1320, 1330 & n.8 (2d Cir. 1990); see also Rangolan v. Cnty.
of Nassau, 370 F.3d 239, 244-45 (2d Cir. 2004); DiSorbo v.
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Hoy, 343 F.3d 172, 183 (2d Cir. 2003) (appellate review of
compensatory damages award is "narrow").
2. Application
The District objects to the reduced $1 million
award on three grounds. First, it argues that Anthony
failed to present sufficient evidence to sustain the $1
million award. Second, it asserts that this Court should
look to employment discrimination cases for guidance
because Anthony has established only "garden variety"
damages. Third, the District contends that the
compensatory damages awarded to Anthony far exceed those in
other cases of student-on-student harassment.
First, we conclude that the record contained
sufficient evidence to uphold the jury's award. Evidence
presented at trial, including the testimony of Anthony, his
mother, and Maxey (of the N.A.A.C.P.), revealed Anthony's
increasing frustration, loneliness, and other emotional
anguish. While Anthony's testimony alone arguably might
not support his claim of emotional distress, see, e.g.,
Annis v. Cnty. of Westchester, 136 F.3d 239, 249 (2d Cir.
1998) ("[T]he only evidence of [the victim's] emotional
-44-
distress -- her own testimony -- is insufficient to warrant
an award of compensatory damages for that injury."), others
who testified corroborated Anthony's suffering and
distress, see, e.g., Patrolmen's Benevolent Ass'n of the
City of N.Y. v. City of N.Y., 310 F.3d 43, 56 (2d Cir.
2002) (damages for emotional distress warranted if
plaintiff's testimony is corroborated by other evidence).
In addition, evidence of medical atten tion is not required
to establish damages for emotional distress. See Miner v.
City of Glens Falls, 999 F.2d 655, 663 (2d Cir. 1993).
Moreover, Anthony demonstrated that he suffered
"substantially adverse educational consequences" as a
result of the District's deliberate indifference. Appellee
Br. at 69. Anthony's prolonged harassment resulted in an
educational environment that was disparately hostile ,
depriving him of a scholastic benefit. Hayut, 352 F.3d at
750. Anthony also accepted the IEP diploma rather than
attempt to satisfy the Regents requirements. As a
consequence, the jury reasonably could have found that his
ability to attend college or enter the workforce was
significantly and adversely impaired.
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Second, as to the District's argument that Anthony
has proved no more than the "garden variety" damages of the
type found in employment discrimination cases, the fact is
that this is not an employment discrimination case, nor are
the damages of the "garden variety" type. Anthony was not
an adult losing sleep due to workplace stress. Rather, he
was a teenager being subjected -- at a vulnerable point in
his life -- to three-and-a-half years of racist, demeaning,
threatening, and violent conduct. Furthermore, the conduct
occurred at his school, in the presence of friends,
classmates, other students, and teachers. The jury
reasonably could have found that the harassment would have
a profound and long-term impact on Anthony's life and his
ability to earn a living. 16
16
The district court relied on guidance from the
Department of Education when it determined that workplace
discrimination claims were not analogous to t he corrosive
effect of condoned discrimination in the schools. Mem. &
Order, at 5 (Aug. 5, 2010), ECF No. 83 ("'[V]erbal
harassment of a . . . child by fellow students that is
tolerated or condoned in any way by adult authority figures
is likely to have a far greater impact than similar
behavior would on an adult.'" (quoting Dep't of Educ., 59
Fed. Reg. 11448, 11449 (Mar. 10, 1994))).
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Third, as to the District's contention that the $1
million award far exceeds other awards and "shock[s] the
judicial conscience," Manganiello, 612 F.3d at 168, we are
not persuaded. Indeed, the district court's award as
reduced was "located within the range of permissible
decisions." Id. at 165 (internal quotation omitted). A
review of cases in the educational context indicate that
verdicts range from the low six figures, to the mid-six
figures, to as much as $1 million. 17 Given the severity,
17
See, e.g., Vance v. Spencer Cnty. Pub. Sch. Dist.,
231 F.3d 253, 256-58 (6th Cir. 2000) ($220,000 jury verdict
for student who was sexually harassed by peers who made
comments, tried to rip her clothes off, and stabbed her in
the hand); Howard v. Feliciano, 583 F. Supp. 2d 252, 256-59
(D. P.R. 2008) (upholding $1 million jury award in a Title
VI teacher-on-student harassment case); Doe ex rel. A.N. v.
E. Haven Bd. of Educ., 430 F. Supp. 2d 54, 55-56 (D. Conn.
2006) ($100,000 jury verdict under Title IX, where student,
after being raped by two students, was harassed by her
peers); Theno v. Tonganoxie Unified Sch. Dist. No. 464, 394
F. Supp. 2d 1299, 1301 (D. Kan. 2005) ($250,000 jury
verdict under Title IX for peer harassment of student on
the basis of sexual orientation); Judgment in Favor of
Plaintiff Against Defendant, Patterson v. Hudson Area
Schs., No. 05-74439 (E.D. Mich. Mar. 30, 2010), ECF No. 182
(jury awards $800,000 in a student-on-student Title IX
case), rev'd by 724 F. Supp. 2d 682 (E.D. Mich. 2010)
(judgment vacated on the basis of liability); Civil
Judgment, Enright v. Springfield Sch. Dist. No. 464, No.
04-cv-1653, (E.D. Pa. Dec. 8, 2006), ECF No. 87 ($400,000
award for 7-year-old who was sexually assaulted by two high
school students on the bus).
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duration, and egregiousness of Anthony's unchecked
harassment, his reduced compensatory damages award was not
outside the "range of permissible decisions." In re Sims,
534 F.3d 117, 132 (2d Cir. 2008) (internal quotation
omitted); Ismail, 899 F.2d at 187 (appellate review focuses
on whether the verdict lies "within [the] reasonable
range"). Because of the limited nature of our review and
the fact-intensive nature of this case, see Gasperini v.
Ctr. for Humanities, Inc., 149 F.3d 137, 141 (2d Cir. 1998)
("Deference is justified because the district judge is
closer to the evidence, and is therefore in a better
position to determine whether a particular award is
excessive given the facts of the case."), we decline to
upset the district court's decision.
Given the ongoing and objective offensiveness of
the student-on-student harassment here, we hold that the
district court did not abuse its discretion in determining
that the record could support an award to Anthony of
$1 million. See In re Sims, 534 F.3d at 132.
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CONCLUSION
For the reasons set forth above, the orders and
amended final judgment of the district court are AFFIRMED.
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