Contentious discrimination case reaches public hearing stage today
By Topher Sanders, theithacajournal.com, December 19, 2007

ITHACA — More than two years after Amelia Kearney's daughter was racially harassed by students while riding a school bus, Kearney and the Ithaca City School District will finally face each other in front of a judge today.

A two-day public hearing in the case Kearney vs. Ithaca City School District begins today. Kearney claims the district failed to act promptly and effectively to protect her daughter from the harassment, which occurred over a five-month period during the 2005-06 school year.

District officials have repeatedly said measures were taken to protect Kearney's daughter but have never detailed those measures, stating that the pending litigation prevented them from speaking on the matter.

The district will get a chance to detail those measures today and Thursday in front of Administrative Law Judge Christine Marbach Kellett.
The question before Kellett will be whether the district did enough to shield Kearney's daughter from the harassment.

The hearing is being held at 9 a.m. at Tompkins County Public Library's BorgWarner Community Meeting Room. It was moved Tuesday from the Tompkins County Courthouse because of a scheduling conflict.

A finding for the district would mean the organization is absolved of Kearney's allegations. A finding for Kearney could take the form of legal mandates with which the district must comply, or monetary damages, or both.

It isn't possible to approximate when Kellett will issue a decision in the case, said Tom Shanahan, spokesman for the state Division of Human Rights.

“We do try to comply with the statutory deadline of 465 days from date of filing to decision,” he said. “A stay was in place in this case, so that of course affects the timeframe, but we will now try to move forward as expeditiously as possible.”

Kearney has eagerly waited for the hearing to finally get under way.

“I just want the truth to come out,” Kearney said. “It will come out Wednesday and Thursday, and I want the district to be found guilty.”

Kearney is being represented by Ithaca attorney Raymond Schlather.

“The school district was aware that this stuff was going on and either took no steps or the steps that it took were woefully inadequate, and that's the issue,” Schlather said.

The district does not dispute whether Kearney's daughter was harassed.

“The real question is what the school district's responsibility is,” he said.

The district believes its response was adequate, said Subhash Viswanathan of Bond, Schoeneck and King, the district's attorneys.

“The district investigated each allegation that was made and took appropriate disciplinary action in response to each incident and also engaged in efforts to educate students regarding appropriate behaviors,” he said.

District Superintendent Judith Pastel said she is looking forward to the hearing's conclusion.

“We all need to move on so I'm glad that we are having the hearing in December, so we can have it over and move on,” she said. “I'm focused on the children and the programming.”

The hearing in Kearney vs. Ithaca City School District was initially scheduled for Oct. 1-2, but a series of legal defenses by the district postponed the hearing.

As part of its defense, the district challenged whether New York's human rights law protected public school students. The challenge, if successful, would have stripped New York public school students of the human rights law's protection.

Challenging the law was best for all New York students, district officials said repeatedly, because the Division of Human Rights' public hearing process forced school districts to break federal student privacy laws when a school district uses evidence related to other students as part of its defense.

The district's legal moves spurred protests, a district office stand-in, student walk-outs at Ithaca High School and national media coverage.

The district experienced a tumultuous October. Rumors of race brawls and of violence brought the Ithaca Police Department to Ithaca High School on several occasions and mass absences occurred due to rumors of violence.

After October's events and continued pleas from the public and national organizations to end the legal challenge, the district's board voted unanimously on Oct. 23 to withdraw the challenge, clearing the way for a hearing in Kearney vs. Ithaca City School District.

The district's legal defense costs from January 2006 through September 2007 exceed $43,100, according to documents provided by the district in response to a Freedom of Information Law request. The district was responsible for more than $8,500 of that legal cost. The remaining $34,600 was paid by the district's insurer, New York Schools Insurance Reciprocal.

It is unclear if the FOIL response represents the total cost of defense and the district's challenge of the human rights law for this time period. Some legal bills could have been sent directly to the insurer and district officials would not have seen or received those bills, said Paul Mintz, assistant superintendent for business services.

Mintz would not request any possible billing documents that went directly to the insurance group.

“I don't know why I'd do that,” he said. “We don't have any need for them.”

After voting to withdraw the challenge, the district continued to raise concerns about student privacy during the hearing. The district's attorneys asked the division to subpoena the records the district planned to use for its defense.

The subpoena partially exempts the district from federal student privacy laws, Viswanathan said.

“I'm relieved that the human rights commission attorney sent a subpoena to the school district, so that the records have been subpoenaed,” Pastel said. “That was a major concern. That subpoena is really critical to the district.”

Today and Thursday, both sides of this matter will finally have their chance to be heard.

cbsanders@ithacajournal.com
Originally published December 19, 2007

Kearney Case Timeline

Oct. 3, 2005: Amelia Kearney's daughter tells her mother she is being harassed on the school bus. Kearney's daughter was harassed between Oct. 2005 and February 2006 while riding on a school bus home from school. Kearney's daughter says she was punched, spat on in the face, called slurs such as ni--- and c--- and told there was a gun with her “name on it.”

Oct. 16, 2005: Kearney writes letter to Principal of DeWitt Middle School, Superintendent and transportation director voicing her concerns and asking for help.

December 2005: Kearney sends a series of e-mails to board members and the superintendent addressing her concerns. Neither a board member nor the superintendent responded to Kearney, meanwhile Kearney alleges her daughter's harassment continued.

Jan. 13, 2006: Kearney files complaint with Tompkins County Human Rights Commission/New York State Division of Human Rights alleging the school district failed to promptly and effectively protect her daughter from the harassment.
April 3, 2006: Kearney gets restraining order against one student who allegedly harassed her daughter. Kearney later obtained another restraining order against another student who allegedly harassed her daughter.

September 2006: Despite the restraining order, DeWitt Middle School schedules Kearney's daughter in classes with the student against whom she has a restraining order. Principal acknowledges and makes a change in class assignment.

Nov. 13, 2006: Commission/Division finds probable cause in Kearney's claim that the district failed to protect her daughter.

May 8, 2007: The Ithaca Journal reports news of Kearney's claims. District states it can't speak fully to defend itself because the matter is in litigation.

June 6, 2007: Hearing in Kearney vs. ICSD is given its initial dates of Oct. 1 and 2.

Aug. 13, 2007: School district challenges whether the state's Human Rights Law protects public school students in State Supreme Court (Judge Robert C. Mulvey).

Aug. 24, 2007: District asks Division to close Kearney's hearing from the public, citing student privacy concerns. The district asserted that the division's public hearing process forced school districts to break federal student privacy laws when they introduced evidence related to other students in an effort to defend itself. Division denies the district's request.

Sept. 11, 2007: Citing precedent, State Supreme Court sides with Division in jurisdiction challenge, but calls district's argument persuasive.

Sept. 17, 2007: District decides in executive session to appeal challenge of human rights law to Third Department of N.Y.'s Appellate Division.

Sept. 18, 2007: Ithaca Journal reports potential implications of district's challenge of the human rights law, which, if successful, would mean public school students were no longer protected by the law.

Sept. 20, 2007: District asks the Division of Human Rights to postpone Kearney's hearing until the appeal is heard by the Third Department.

Sept. 24, 2007: Division denies district's request to postpone hearing.

Sept. 25, 2007: District decides to pursue injunction against division to prevent Kearney hearing and any other action against the district. District also votes 5-3 in public to pursue appeal to rectify their having made the decision in closed executive session earlier.

Sept. 28, 2007: Third Department issues temporary restraining order against division, preventing Kearney hearing from occurring on Oct. 1. Calls are made for Superintendent Judith Pastel to resign by groups and individuals, including former city mayor Ben Nichols and Alderwoman Michelle Berry, D-2nd.

Oct. 1, 2007: Protesters stage stand-in in Superintendent Judith Pastel's office, causing police to be called and the district buildings' doors to be locked. Pastel meets with protestors outside her offices to listen to concerns.

Oct. 2, 2007: Pastel criticizes some protesters for their actions and language.

Oct. 9, 2007: Board of Education's refusal to immediately revote on their decision to challenge the human rights law angers a group of high school students, college students and community members. The board is forced to adjourn their meeting early because of the loud and sometimes offensive comments from some at the meeting.

Oct. 10, 2007: A group of Ithaca High School students, some of whom attended the board meeting the previous night, walk out of school to protest alleged inequities at the school.

Oct. 18, 2007: Lambda Legal, a legal advocacy group for the Lesbian Gay Bisexual Transgender Community, informs board that challenged would have a detrimental affect on LGBT students abilities to bring forth complaints of discrimination.

Oct. 18, 2007: Nearly half of the students attending Ithaca High School are absent for all or some portion of the day after rumors of violence at the high school. The rumors began when fliers meant to count down to a meeting on equity concerns were interpreted by some as a countdown to violence.

Oct. 23, 2007: ICSD Board of Education unanimously votes to withdraw its challenge of the state law, opening the way for there to be a hearing in Kearney vs. Ithaca City School District.

Originally published December 19, 2007

NEWS | October 25, 2007
School board votes to retract former appeal
By Michael Kulikowsky and Trevor Levine, theithacajournal.com

The Ithaca City School District (ICSD) Board of Education voted unanimously Tuesday night to rescind an appeal that questioned the Tompkins County Human Rights Commission's (TCHRC) involvement in the case of Amelia Kearney v. Ithaca City School District.

The board admitted previous errors in judgment and conceded their original decision was misguided.

Robert Ainslie, a board member, expressed the board's regret for their previous ruling.

"The choice to go to an appeal was simply not in the best interest of this district or this community," he said.

In the case of Kearney v. ICSD, Amelia Kearney, a student at Ithaca College, said that during the 2005-06 school year, her 14-year-old daughter, Epiphany, was spit at on the school bus and hit and threatened with violence and racial epithets by a group of white students. In her suit, Kearney alleged the district did not do enough to protect her child and denied her an adequate education under human rights law.

When the local chapter of the Human Rights Commission became involved in the case, the school board appealed. The board said involvement of the Human Rights Commission would force the school to break federal student privacy laws.

If the appeal was successful it would have set precedent in New York state that children could not be protected in education under human rights laws.

A rally was organized by a group of community members and college students to precede the meeting, which took place in the Kulp Auditorium at Ithaca High School (IHS), but bad weather forced the protesters inside. The emotions and sentiments echoed by the protesters carried into the heated meeting.

Ithaca College junior Billie Dawn Greenblatt participated in the rally and sat in on the board meeting. She said she attended to show support for the community.

"We were there to show community solidarity in response to the district's handling of the issues," she said.

Tyrell Lashley, African-Latino Society (ALS) spokesperson, also attended the board meeting. Lashley said ALS has provided support for Amelia Kearney and her family throughout the ordeal.

"We have always and will continue to support Amelia Kearney and turn in whatever direction she feels necessary for us to continue supporting her," he said.

Lashley said the new decision by the board will affect generations of students in the future.

"The decision to rescind is huge due to the fact that it allows high school students an avenue for recourse," he said.

Members of the community were provided the opportunity to voice their disappointment with the board's original decision to file the appeal, as well as the performance of ICSD Superintendent Judith Pastel. Those present said Pastel had asked to shift the focus of the issue away from an act of discrimination to a matter of school safety.

One protestor periodically held up a sign throughout the meeting that read, "Pastel Resign 2nite."

Board member Seth Peacock did not originally vote in favor of the appeal. He said it was time to hold the leadership of the school district accountable for its actions.

"The type of leadership (Pastel) can provide is not what the district needs," said Peacock.

Board member Beth Kunz was also critical of the district's previous stance.

"We are reactive and not proactive," she said.

Pastel, who was present at the meeting, did not comment.

During the open floor session of the meeting, the crowd cheered as Amelia Kearney approached the microphone. Kearney thanked the audience for their support and said the district must address its issues, which affect students from all backgrounds.

"Parents in Caroline and Enfield have the same concern as parents downtown," said Kearney. "Systemic changes, I think, need to take place."

NEWS | October 4, 2007
A case for justice:A human rights court case against the Ithaca City School District could set a precedent limiting legal actions for New York school children
By Aaron Munzer | Special Projects Manager

Protesters gathered with signs at noon Monday outside the Ithaca City School District administrative offices. The group was challenging the way superintendent Judith Pastel handled alleged incidents of racial harassment in the DeWitt Middle School during the 2005-06 academic year. Connor Gleason/The Ithacan More than 80 protesters, angry at the way the Ithaca City School District has handled a case of alleged racial harassment against a student, marched into the offices of the superintendent Monday and demanded answers.

The rally began at noon with a march and several speakers outside the district offices. After about an hour, protesters moved indoors and occupied the office of Superintendent Judith Pastel, chanting, "Come out, Judy."

In recent weeks, the case, Amelia Kearney vs. Ithaca City School District, has shaken Ithaca, a community often hailed as progressive, as local activist groups like the Race Liberation Alliance and Cornell University's Black Students United have joined the cause, and the local arm of the New York State Human Rights Division has taken on the case.

Kearney said within a five-month period, her 14-year-old daughter, Epiphany, was repeatedly spit at on the school bus, hit and threatened with violence and racial epithets during the 2005-06 academic year at DeWitt Middle School. Kearney, 37, is an Ithaca College student majoring in criminal and juvenile justice. Her daughter is now a student at Ithaca High School.

Kearney alleges that under human rights law, the district did not do enough to protect her child and did not allow her to receive an education. She's seeking compensation for emotional damage and wants the district to admit that it did not do all it could to protect her daughter.

"The (district) has admitted that yes, (incidents) did occur," Kearney said. "The question is, were they timely and effective (in responding). I want (Epiphany) to be compensated for her mental anguish. She’s been traumatized by this."

The rally-goers were angry at the district because it had recently challenged the division's jurisdiction over the case and forced an injunction to postpone the case until the issue can be decided.

"I think its a travesty of injustice, that in itself is a crime," said Joyce Muchan, vice chairwoman of Tompkins County Human Rights Commission. "For Epiphany to not have her day in court is an injustice."

Pastel said the commission should not have jurisdiction because it would force the district to break federal student privacy laws by showing video of other students to defend itself.

If the district prevails, the legal precedent it sets would mean all public school children in New York state would not have protection in education under human rights law, Muchan said. She said with this precedent it would be harder for parents to seek claims against school districts in discrimination cases. They would be forced to hire a lawyer or attempt to join a class-action suit.

At Monday's rally, high school and college students and community members flooded into Pastel's office to set up an appointment to speak with her, but were told by her assistant, Doreen Bowles, that she was unavailable.

Inside the office, Ithaca High School senior Thandi Farley spoke to protesters about the "hostile learning environment" she and other minority students like Epiphany encounter on a daily basis at IHS.

"Last year, one of my friends was bumped in the hallway, (and) they said they were going to lynch her, they called her a nigger," she said. "This stuff happens all the time at our school, and nobody recognizes it."

The Ithaca Police Department was called to the scene around 1 p.m. and stood by to make sure the rally stayed civil. No arrests were made.

Pastel announced around 2 p.m. that she would speak with protesters, who had agreed to leave the offices as long as Pastel would meet with them. When she arrived outside, she told the crowd that she was there to listen.

Several high school students addressed the superintendent, demanding, they said, to know why white students received lesser punishments for incidents in which both white and black students were equally guilty.

After about 10 minutes of questions, Pastel said, "Thank you all very much," and retreated inside to shouts of "No, come back," and then, "Pastel must go." The Ithaca Police Department locked the doors behind her.

Bailey Johnson, an Ithaca College sophomore present at the rally, said he thought the superintendent should step down because of her poor handling of the situation.

"First (Pastel) should get rid of this injunction and the whole legal process and let (Epiphany) have her day in court," he said. "Everybody needs to hear these issues. Basically, they're trying to sweep this under the rug."

Alan Gomez, assistant professor of Latino studies who also attended the rally to show his support for Kearney, said racism is deeply ingrained in American culture and its schools.

"I think it's sad how young children can be influenced by their parents and their environment," he said. "I don't think that 11-year-old has the capacity to understand what it means to say, "we're going to hang you up by the tree."

The college's African-Latino Society has joined Cornell's Black Students United to protest the district's actions as well. Senior Tyrell Lashley, spokesperson for ALS, said the group will attend next Tuesday's school board meeting to express its support for Kearney's daughter.

"We do not understand the school district's reasoning behind why they feel students' rights should not be protected under human rights laws," he said.

At a conference at the Human Rights Commission last Friday, Lashley spoke for ALS asking Ithaca College President Peggy R. Williams to support Kearney and the Human Rights Commission.

Williams responded with a letter to ALS, which was read at the group's meeting Tuesday. Williams said she supported ALS in standing up for issues they believe in but that she didn't think it was appropriate for the college to become involved.

The district's request for an injunction to postpone the case is due on Friday. The five-judge panel could make their decision as early as Friday, though it will most likely take longer.

No date is currently set for when the district's appeal will be heard.

ICSD settlement list
The Ithaca City School District has settled 15 cases since 1995

1. Case: Groundskeeper vs. Ithaca City School District

Narrative: The groundskeeper filed complaints against the district with the EEOC and the Division of Human Rights in September 2004. He alleged employment discrimination and the division found probable cause to believe his allegations.

Settlement: The claimant settled with the district for re-employment as a groundskeeper, valued at $24,541 annually. The groundskeeper's re-employment began in April 2007.

2. Case: Teacher vs. Ithaca City School District

Narrative: The teacher filed complaints against the district with the EEOC and the Division of Human Rights on or about March 2004. She alleged discrimination on the basis of race and disability while employed as a “probationary teacher” with the district. The teacher also alleged that the district's move to terminate her employment in March 2004 was retaliation for the teacher opposing the alleged discrimination and seeking help from her union to file a grievance. The division found probable cause to believe her allegations.

Settlement: Claimant reached a settlement with the district for $20,000 in August 2006. As part of the settlement the teacher agreed not to re-aply for employment with the district.

3. Case: Substitute teacher vs. Ithaca City School District

Narrative: The substitute filed complaints in U.S. District Court Northern District of New York on April 2005 alleging age discrimination in connection with his 2003 application for full-time permanent employment with the district. The claimant, who was 76 at the time, was a full-time substitute technology teacher at Ithaca High School between 2000 and 2002. The substitute applied for a full-time technology teaching position but was not selected and was informed “that a younger candidate with less experience was selected instead,” according to state documents. In addition to age discrimination, the teacher claimed defamation, emotional distress and mental anguish.

Settlement: The district settled with the teacher for $35,000 in December 2005.

4. Case: Bus Aide vs. Ithaca City School District

Narrative: The bus aide filed complaints with the EEOC and the Division of Human Rights in February 2003 alleging sexual harassment and retaliation while she was a bus aide for the district.

Settlement: Claimant settled with the district for $750 in November 2004.

5. Case: District staff member vs. Ithaca City School District

Narrative: Claimant sued the district in State of New York Supreme Court in Tompkins County for an unknown reason.

Settlement: The district settled with the claimant for $17,500 on April 2004.

6. Case: Redacted Claimant vs. Ithaca City School District

Narrative: None available

Settlement: The district settled with the redacted claimant for $450,000 in May 2002. The settlement document referenced the date Jan. 29, 2001.

7. Case: Teacher and Ithaca Teachers Association vs. Ithaca City School District

Narrative: The teacher filed a complaint in November 1999 with the Division of Human Rights alleging discrimination on the basis of sex. The ITA alleged the district violated four articles of their negotiated agreement that existed between July 1996 and June 1999.

Settlement: The district settled with the teacher in November 2000 for $10,000 in addition to interest to be paid at the rate of five percent from August 8, 1999 through Oct. 9, 2000.

8. Case: Physical education teacher vs. Ithaca City School District

Narrative: The physical education teacher was investigated by the district for allegations made by another staff member during a public forum conducted by the board of education in December 1999. The PE teacher denied the allegations but based on a review of the situation, Superintendent Judith Pastel determined that she could not recommend the PE teacher be appointed to coach the girls' varsity softball team for the spring 2000 season. A grievance was filed by the ITA on behalf of claimant in March 2000 because he was not re-appointed to coach the district's girls' varsity softball program. The district's attorney recommended that Pastel also not recommend claimant be appointed as an assistant football coach for the boys' football team for the fall 2000 season. In July 2000, the PE teacher commenced an action in the Supreme Court Tompkins County against the district.

Settlement: The PE teacher settled with the district in January 2000 for $3,300, the coaching stipend he would have received for the fall 2000 modified football position. The settlement called for the claimant to be considered for appointment to any coaching position he applied for and that he would not be denied appointment to any future coaching position on the basis of any alleged conduct committed before January 2000. The superintendent also agreed to recommend the PE teacher be appointed to coach the girls' varsity basketball and girls' softball team for the 2000-01 season.

9. Case: Teacher and Teacher's Aide vs. Ithaca City School District

Narrative: A teacher's aide and a teacher sought retroactive adjustment of their respective retirement system membership dates under Section 803 of the New York Retirement and Social Security law. After the district denied their respective requests, the teacher and the teacher's aide jointly commenced an article 78 proceeding in NY State Supreme Court in Albany County in June 1999 seeking relief under Section 803.

Settlement: Both claimants settled with the district on or around July 1999 for the district's agreement to prepare and submit to the New York State Teachers' Retirement System affirmative Section 803 affidavits on behalf of each of them. Documents provide in response to a FOIL lacked the signatures of the claimants.

10. Case: District staff member vs. Ithaca City School District

Narrative: The claimant retired from the district prior to the start of the 1996-97 school year. She sought retroactive adjustment of her retirement system membership date under section 803 of the NY Retirement and Social Security Law. After the district denied her request, the claimant commenced an Article 78 proceeding in the NY Supreme Court, Tompkins County, in June 1998, seeking relief under section 803.

Settlement: The claimant settled with the district in December 1998 for the district's agreement that it would prepare and submit to the NY State Teachers' Retirement System an affirmative Section 803 affidavit stating that the claimant was first eligible to join a NY State retirement System in April 1970.

11. Case: Redacted claimant

Narrative: Claim for an accident that occurred on May 22, 1995.

Settlement: Ithaca City School District settled with a claimant whose name was redacted from documents for $6,000 in October 1998.

12. Case: Redacted Claimant vs. Ithaca City School District

Narrative: The claimant filed a complaint against the district with the Division of Human Rights in March 1996 alleging her children were racially harassed by other students while riding the school bus during the 1995-96 school year.

Settlement: The district settled with the claimant in May 1996 for $8,595 and numerous conditions. In the settlement the district agreed to kick two unnamed students off school buses permanently. One student was allowed to remain on the bus for the remainder of the 1995-96 school year and a bus monitor was hired to ride the bus. The district also agreed to keep claimant's children separated from the children who allegedly harassed them while riding the bus. The district agreed that it would provide racial harassment training for all bus drivers and bus monitors during its August 1996 leadership training program. The settlement called for a particular associate principal was also provided racial harassment training, which was a 15-week program and began in fall 1996. The district also provided a written apology to the claimant and her children from the associate principal involved in the incident. One of the claimant's children was permitted to attend summer school in 1995-96 with cost paid by a redacted party. The district amended the Handbook of Student Rights and Responsibilities to include a separate section outlining the grievance procedure for students who wish to report an alleged violation of the district's bus riding conduct policy.

13. Case: Assistant vs. Ithaca City School District

Narrative: The assistant filed a complaint against the district in March 1996 with the Division of Human Rights and EEOC alleging age discrimination. The claimant was employed by the district from 1976 to 1996 and her position was eliminated by the board of education in February 1996. She asserted that the district also violated the Managerial/Confidential Employees' Agreement by counting some of the days she was on medical leave as vacation days and by eliminating her position.

Settlement: The district settled with the assistant in May 1996 for $16,793, an amount equal to the pro rata share of her 1995-96 salary for the time period beginning on March 1, 1996 and ending in June 30, 1996.

14. Case: Claimant vs. Ithaca City School District Board of Education

Narrative: The claimant commenced an Article 78 proceeding against the board in the Supreme Court for Tompkins County seeking an order both declaring him entitled to and compelling reimbursement of legal fees and other costs and expenses incurred as a result of seeking the advice of private counsel regarding certain allegations made against him by a district employee. The district employee made the claims against the claimant in May 1994. The claimant filed a complaint against the employee in June 1994.

Settlement: The claimant settled with the board for $1,399 in July 1995.

15. Case: Redacted claimant vs. City of Ithaca, et al.

Narrative: None available.

Settlement: A settlement in the sum of $5,000 for an unspecified matter filed in October 1994 is reference in an April 17, 1995 document.

Originally published December 19, 2007

NY State Division of Human Rights: Commissioner's Orders