E-raced Discrimination suit thrown out

GUILDERLAND — The school district has defended its reputation, said the superintendent, since a federal judge dismissed a suit claiming racial discrimination.

The plaintiff’s mother, though, said she hopes the district will talk about what it will do to create a safer environment.

More than six months ago, a federal judge dismissed charges brought against the Guilderland School District by student Garrett Barmore. This Tuesday, the district announced its victory in a press release and stated the judge assessed $9,500 in court costs against Barmore, to be awarded to the district.

Peggy Barmore, told The Enterprise this week that the district offered to reduce that amount if her son signed an agreement, stating he would not talk to the press; he didn’t sign, she said.
The suit stemmed from a 2003 incident in which two African-American students got into a fight in the school cafeteria with a white student who called them "nigger."

The two African-American students — Barmore, who was 17 at the time, and his friend Andrew Dillon, who was 18 — were both charged with disorderly conduct, a violation, and third-degree assault, a misdemeanor. The white student, Jordan Peceri, was not charged in the incident.
The school resource officer, Brian Forte, recalled this week that it had been difficult for him to make the arrests. "They’re both nice kids," he said of Barmore and Dillon. They used to visit with him frequently at school but the relationship "diminished" after the arrests, Forte said.
Forte, a Guilderland police officer stationed at the high school full-time, works on cases with school administrators, he said, and they decide jointly about making arrests. "They take advice from me and I assist them on their wishes," he said.
"I’m pleased with the judge’s decision," said Forte. "We can’t control things we don’t know about. Kids need to come forward."

Case history

Barmore, represented by Paul Wein of the Guilderland firm Wein, Young, Fenton & Kelsey, claimed a race-based hostile educational environment, a hostile educational environment, disparate treatment, lack of due process, and negligence.
The school district, represented by Gregg T. Johnson, of the Albany law firm Girvin & Ferlazzo, moved for summary judgment, asserting the case had no genuine issue as to any material fact. As one legal treatise quoted by the judge in this case, Senior United States District Judge Thomas J. McAvoy, succinctly states, summary judgment requires the parties to "put up or shut up."

McAvoy granted the district’s motion for summary judgment, meaning the case never went to trial, and was dismissed.
"We certainly are very pleased with the decision," Guilderland’s superintendent of schools, Gregory Aidala, said on Tuesday. "The judge felt this was a case that did not deserve to go to trial because the evidence did not support the charges...We felt from the beginning we did the best job possible in a difficult situation. We were fair and consistent in enforcing discipline, according to our policies."
Aidala had maintained a consistent position throughout; from the week of the 2003 fight, he said, "Fighting is not going to be condoned or tolerated."

Wein had stated all along that Barmore was the victim and that criminal charges were not right.

In mid-May of 2004, Dillon and Barmore appeared separately in Guilderland Town Court, represented by different lawyers, and each had his case adjourned in contemplation of dismissal. Since they were not arrested again in six months, their cases were dismissed. Dillon did not sue the school district.

Wein asked for an apology from the district; when he didn’t get one, he proceeded with Barmore’s suit.

In mid-May of 2004, the NAACP held a press conference on the steps of the State Education Department building in Albany, charging Guilderland with racism.
"Does Guilderland have its own Jim Crow laws where their anti-bullying policy works for some and not for others"" asked Anne Pope, regional director of the National Association for the Advancement of Colored People.

Pope blasted the predominantly white suburban school district, saying it had separate polices for the white, affluent, and privileged.

To the contrary, Aidala told The Enterprise at the time, describing the district as a model for teaching tolerance and respect for diversity.

Slurs commonplace

Wein told The Enterprise this week that Barmore and his mother, Peggy, chose not to appeal McAvoy’s decision. "I think they were just worn out," he said. "They couldn’t afford to go through with an appeal."
Wein went on, "We supplied a dozen affidavits from African-American students...Two said they left Guilderland because of the racially hostile atmosphere...The N word was bandied about."
Peggy Barmore said this week, "We were disappointed we couldn’t go to trial....It was clear to us something was going on in the schools that not even parents are aware of; kids deal with it on a day-to-day basis," she said of racist and religious slurs.

At the time of the 2003 cafeteria fight, The Enterprise wrote about groups at the school such as STAR (Students and Teachers Against Racism) and NCBI (National Coalition Building Institute) working to thwart prejudice.
Kids calling each other "slut" or "gay" or "bitch" is commonplace in school hallways, said members of NCBI.
"It’s just become commonplace to use ‘retarded’ or ‘gay’ as a substitute for ‘stupid,’" said René Sheehan, a high-school guidance counselor and advisor for the group. "Through NCBI, we’re teaching words hurt...A lot of kids say, ‘I didn’t know that was hurtful.’
Peggy Barmore said this week, "We wanted to hold Guilderland administrators accountable."
She went on, "It’s been a tough three years. It’s been painful. You don’t like to see someone hurt your child. I would do anything to save him from that."

Outrageous or fair"
Wein said he was "shocked" by the judge’s decision and pointed out what he saw as inconsistencies in McAvoy’s reasoning.
"He said, ‘Despite that racial and religious epithets were regularly uttered in the halls and on the buses of the school district, there is no evidence that they were heard by Plaintiff,’" Wein said, reading from the decision. "Does that make sense" How is that not a race-based hostile educational environment"...It’s just outrageous. I’ve never been more shocked by a decision in 33 years of practice."

Wein also said he was puzzled by the district’s announcement this week and by its insistence Barmore pay the $9,500.
"He’s a student; he doesn’t have that kind of money," said Wein. Wein said that, frequently, when he has won cases, he hasn’t pursued the court fees.
Wein also pointed out that, while the district’s press release said, "Barmore’s appeal of Judge McAvoy’s ruling was also dismissed," instead, the Barmores had "abandoned the appeal."

Peggy Barmore said that, just before Christmas, the district had asked her son to sign an agreement that he would not talk to the press about the case; in return, the district would not pursue $7,000 of the $9,500 payment, she said.
Aidala said the press release was issued because the school board "felt it was important to make an announcement."
He noted there was a lot of media attention when Barmore filed the suit and said, "We certainly defended ourselves vigorously. The outcome says to the public that the school district did what was expected under the circumstances...There are consequences for people’s actions."
Asked about the district’s collecting $9,500 from Barmore, Aidala said, "If the judge awards it, it’s part of the plaintiff’s responsibility."
Asked why the district would offer to reduce the amount by $7,000 if Barmore signed an agreement not to talk to the press, Aidala said, "It’s inappropriate for me to discuss." He said the matter was handled by the lawyers and declined further comment.

The district’s legal costs were covered by its insurance, Aidala said, but he could not estimate what the costs were.
Aidala went on about the meaning of the judge’s decision, "Our administrators at the high school do a good job to provide a safe and supportive environment...We try to be very fair...to investigate problems...The decision verifies that district administrators acted fairly."
Asked if he had concerns about racist comments being made at school, Aidala said, "This case was about a disciplinary consequence...The judge’s ruling confirmed the accusations were unfounded....We can’t control everyone’s behavior. But we can supply a safe and supportive environment...That’s what our bullying-prevention efforts do."
The superintendent concluded, "We felt strongly we needed to send a message that we will defend ourselves when the district’s reputation is put at risk."

A mother’s view
Peggy Barmore said, "I would hope now the district will talk about what they’ll do to have a safe environment. I hope they will think carefully about how they handle racial complaints."
Her son was born and raised in Guilderland, Peggy Barmore said, and was never considered a troublemaker. In fact, when the Class of 2004 voted for the "senior superlatives," they voted Garrett Barmore as the classmate with the "best laugh," she said.
Barmore called the legal proceedings "a very, very emotional battle." She said, "It’s never been about money. It’s been about accountability...We exposed what was going on in Guilderland. People should listen carefully to what their kids say."
She itemized some of the experiences her son had had at Guilderland High School, including being spit on and being called a "nigger" in his freshman year.
"Every minority person has been called a slur at some point and can remember the day and location," she said. Barmore said she was born in the era "of Brown," referring to the landmark 1954 Supreme Court decision, Brown v. Board of Education of Topeka, that outlawed racial segregation of public schools.
"I grew up in New York City and I can count on one hand," she said, of the times she had experienced such prejudice. "But," she went on about her son, "he had to deal with more in four years at Guilderland than I’ve had in 40-plus years of living."
She took exception to the school calling her son’s fighting "bullying." "It’s not bullying," said Peggy Barmore. "It’s racism. My son was not a bully. He was a target."
She said of the judge’s dismissal, "I’m disappointed we didn’t have the opportunity for a more vigorous debate on what happened in Guilderland. But at least now there is a paper trail...I welcome public discussion. I hope people look closely at the schools and ask questions."
She said she and her son were ready to "move on" and the reason she didn’t feel more bitterness is because of the way her son has "come through this."

At 20, he’s a junior and a dean’s list student, she said, at the University at Albany, majoring in criminal justice and thinking of pursuing a career in civil rights law.
"He got an education at Guilderland — not the kind I would have wanted — but it made him stronger," said Peggy Barmore.

The judge’s ruling

In his 28-page ruling, dated July 12, 2006, McAvoy outlines the situation leading up to the 2003 cafeteria fight.

He notes the district has had a Racial Harassment Policy since 1995 and an Anti-Bullying Policy since June of 2003, and that the policies are published annually in a student handbook. He says Barmore was aware of the policies and participated in NCBI and STAR.
McAvoy outlines "two racially derogatory incidents" Barmore suffered his freshman year from two teammates at football practice. Both players were suspended for a time and the behavior by these two "never occurred again," the judge wrote.
On Oct. 25, 2002, Dillon was involved "in a racially-charged incident" at the high school with Peceri, the student who Barmore later fought in the cafeteria; Peceri had a history of such incidents, resulting in disciplinary action.

Soon after, on Halloween night of that year, Barmore and Dillon were walking through a residential neighborhood when Peceri shouted a racial epithet from a car. Barmore and Dillon filled out a report at school; Peceri admitted shouting the epithet and was suspended from school for two months.

The next year, on Oct. 11, Barmore, Dillon, and two other students were on school property, walking to a homecoming dance, when a vehicle owned by Peceri drove past and an occupant shouted a racial epithet. Barmore assumed it was Peceri, but when school administrators and the school resource officer investigated, their findings were inconclusive.
Peceri contended he was being "set up." Barmore said an administrator talked to the three students and told all of them to "cut it out" before someone got hurt but Barmore was "confused" because he believed he had done nothing wrong and therefore had nothing to "cut out."
On Oct. 29, 2003, in the school cafeteria, Peceri uttered a racial epithet to Barmore and Barmore confronted him, asking "what was his deal." Barmore didn’t physically confront him, not wanting to jeopardize his chance to play in the last football game of the season.
On Oct. 31, 2003, a friend told Barmore that Peceri "threatened that he was going to run [Plaintiff] over with his car that night." Barmore became "enraged" but did not report the threat to anyone at school.
Instead, based on "the erroneous belief" that the school had done nothing to Peceri following the Halloween 2002 incident, and because Peceri was not disciplined for the Oct. 11, 2003 homecoming dance incident, Barmore "decided to handle the matter himself."
He went to the cafeteria, approached Peceri from behind, and "slapped him on the head....A fight ensued," during which Peceri shouted a racial epithet at Barmore, "and both students struck blows upon the other." Peceri suffered a broken nose and was knocked to the floor. Dillon put Peceri in a headlock and Barmore went to an administrator’s office.

The school’s principal issued Barmore the maximum five-day suspension and referred the matter to the superintendent, who issued an additional 11 school days of suspension.
Aidala said, according to McAvoy, that his decision was based on the circumstances of the assault, the evidence at his hearing, and the information he obtained from reading Stephen Wessler’s book, The Respectful School, as well as "input" he received from Wessler.

Wein successfully appealed the suspension so that Barmore’s student’s record shows a five-day suspension.

Peceri was suspended for the rest of the 2003-04 academic year and never attended classes or functions at the high school after that.
McAvoy notes that Barmore graduated with his class and attended his "preferred choice of post-secondary educational institutions."
Barmore’s suit contended that white students received lesser punishments for similar or even more egregious, behavior, and that the district "unlawfully" enforced its anti-bullying policy when Barmore, "a student of color," "justifiably assaulted" Peceri, but failed to enforce the policy when Peceri "illegally assaulted and threatened" Barmore.

Barmore said he was unaware of Peceri’s suspension.

McAvoy goes on to list four other white students who were suspended for longer periods than Barmore following superintendent hearings.
In dismissing Barmore’s claims, McAvoy writes that, to prove there is a race-based hostile educational environment, Barmore would have to show "the environment was permeated with racial hostility of such severity or pervasiveness so as to significantly alter the conditions of his educational environment and thereby deny him equal access to the school’s resources and opportunities."

In his decision, McAvoy devotes by far the most explanation to his dismissal of this claim.
The judge writes, "Despite evidence that racial and religious epithets were regularly uttered in the halls and on the buses of the school district, there is no evidence that they were heard by Plaintiff."
The judge reiterates the two freshmen football incidents, the junior-year incident, and the senior-year homecoming-dance incident and concludes, "While these events constitute offensive and unacceptable behavior by students, they hardly amount to an educational environment permeated by race-based harassment, or of such severity that it would have impeded a reasonable student in Plaintiff’s shoes from accessing the educational opportunities provided at GHS."
McAvoy also states that, although school officials "should have known" that Peceri had a history of racially offensive conduct and that some students used racial epithets in the school, "There are no facts from which a reasonable fact finder could conclude any of Defendants ‘did know’" that Barmore was being subjected to a racially hostile environment by Peceri or anyone else.
McAvoy goes on, "No reasonable fact finder could draw inference that simply because Defendants did not discipline [Peceri] for the 2003 Homecoming Dance incident they intended to allow the harassment to continue....To hold any of the individual defendants responsible for actions beyond September 29, 2003 under these circumstances would impose a standard requiring clairvoyance on the part of school officials...."
On the charge of disparate treatment, McAvoy ruled that Barmore had "failed to establish that he was treated differently than other similarly situated students outside of his protected class....The undisputed facts reveal that non-African American students at GHS have received lengthier suspensions for conduct that was far less egregious then planning and commencing a fight in which another student received a broken nose."
On the due process claims, the judge wrote that Barmore "failed to identify any process or liberty interest he was denied sufficient to establish an actionable due process claim."
On the negligence claims, McAvoy writes that the school district had no way of knowing that the dispute between Barmore and Peceri "had reached such a fever pitch" that Barmore would decide to "ambush" Peceri on school grounds.

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