69 F.3d 669 (2nd Cir. 1995), 1765, Gant v. Wallingford Bd. of Educ.

Docket Nº:1765, Docket No. 95-7015.
Citation:69 F.3d 669
Party Name:Ray GANT, Jr., Ray Gant, Sr. and Elisa Gant, Plaintiffs-Appellants, v. WALLINGFORD BOARD OF EDUCATION, Barbara Beecher, Richard Centner, Phyllis Dechello, Mark Moynihan, T. Thomas Murphy, Valerie Nolan, Steve Pickering, John Wooding, Suzanne Wright, George Bozzi, Jr., Donna Lange, Vincent Testa, Dr. Joseph Cirasuolo, Patricia Cronin and Grace Candi
Case Date:October 26, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 669

69 F.3d 669 (2nd Cir. 1995)

Ray GANT, Jr., Ray Gant, Sr. and Elisa Gant, Plaintiffs-Appellants,



Centner, Phyllis Dechello, Mark Moynihan, T. Thomas Murphy,

Valerie Nolan, Steve Pickering, John Wooding, Suzanne

Wright, George Bozzi, Jr., Donna Lange, Vincent Testa, Dr.

Joseph Cirasuolo, Patricia Cronin and Grace Candido,


No. 1765, Docket No. 95-7015.

United States Court of Appeals, Second Circuit

October 26, 1995

Argued June 27, 1995.

Page 670

W. Martyn Philpot, Jr., New Haven, CT, for Plaintiffs-Appellants.

Peter A. Janus, Hartford, CT (Siegel, O'Connor, Schiff & Zangari, of counsel), for Defendants-Appellees.


JACOBS, Circuit Judge:

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

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


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

According to the complaint, the Gant family moved from Meriden, Connecticut to Wallingford, Connecticut during the winter of 1993 and enrolled six-year-old Ray, Jr. in the first grade of Cook Hill Elementary School, a public school in Wallingford. Ray, Jr. was

Page 671

the only African-American student in the class. The complaint alleges that "he was subjected to unprovoked and repeated racial slurs, continued taunting and unmitigated harassment by fellow students, as well as by certain parents of students enrolled in Cook Hill...." The complaint alleges that school officials, who were at all times acting under color of state law, knew of these acts but took no step to prevent recurrences:

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

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

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

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

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

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

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

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

School personnel are aware of three (3) instances where Ray was subjected to racial insults.

The first incident occurred while Ray was still in Mrs. Candido's class. On a day when Mrs. Candido was absent, the substitute teacher heard another student refer to Ray as a "chocolate drop." When Mrs. Candido received this information, she

Page 672

chose to delay action because it was her judgment that reacting to one incident that had been reported to her by a substitute teacher could serve to develop a climate of hostility rather than to remove one. Mrs. Candido never observed herself any instances when Ray was subjected to racial insults and no other instances were ever reported to her.

A second incident occurred while Ray was in Mrs. Roman's [sic] kindergarten class. This incident was resolved to everyone's satisfaction including the Gants. Mrs. Romans neither observed nor had reported to her any other such incidents.

A third incident occurred at a bus stop when a parent of another student referred to Ray as a "nigger." A short time later, the other student used the same term in reference to Ray. The bus driver reported the matter to Mrs. Cronin. The parent involved is a person who has no telephone and who on past occasions has displayed in nonracial ways the same ignorance, intolerance, and belligerency that she displayed during the incident in question. As a result, Mrs. Cronin decided to postpone any attempt to persuade this particular parent that her actions were entirely inappropriate. Mrs. Cronin did ask the bus driver to monitor the situation closely and to report any further incidents.

The bus driver did not observe any further instances that involved racial insults. There were occasions, however, when Ray and other students on the bus did mutually exchange hostile words. This was reported by the driver to Mrs. Cronin and she responded by making it clear to all involved that this behavior would not be tolerated and by separating the bus seats of Ray and the one other student with whom Ray appeared to be having the greatest degree of conflict.

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

The Gants filed their complaint on August 17, 1994. Defendants moved to dismiss the complaint on numerous grounds on September 28, 1994. The district court granted defendants' motion on November 30, 1994 and entered judgment on...

To continue reading