This is what it is like to be Kyana Fennell, who had the audacity to attempt to attend public school in Texas while being black. All of the facts below are from the court opinion filed in a lawsuit brought by Fennell under Title VI of the Civil Rights Act and 42 U.S.C. § section 1983 against the Marion Independent School District and two of its employees, Glenn Davis and Cynthia Manley. A three-judge panel of the 5th U.S. Circuit Court of Appeals dismissed Fennell and her family’s suit against the school and the school employees earlier this week.
- Kyana Fennell was 18 when this lawsuit was filed in 2012. Her sister Kavin was 13 and her sister Kyrianna (Kyra) was 15. They attended school in the Marion Independent School District northeast of San Antonio.
- Kyana and her siblings brought suit against Davis, Manley, and the district itself, claiming they suffered racial discrimination as a result of a “series of incidents that took place while Kyana, Kyra, and Kavin were enrolled in Marion ISD, a predominately Caucasian school district.”
- The opinion lays out some of the incidents these children faced, including some listed under the subheading: “A. Incidents Involving Nooses.”
- In February 2012, the girls’ mother, Lawanda Fennell-Kinney, “drove to the Marion High School parking lot to retrieve a car seat from Kyana’s car. Next to the car, Fennell-Kinney found a noose and a printed note, which stated:
Die Fuckin “nigger sisters” ... Bitches!!!!
You can never bring our families down ...
Whites will always rule this town and school!!!!
So go ahead and file your stupid damn complaints and grievances ...
NIGGERS ... and that “Nigger Lover” you have a baby with ...
The incident was immediately reported to the Marion High School assistant principal, who told the police. An investigation began, and it sparked so much stress and harassment that Kyana signed an affidavit saying she wanted to withdraw the prosecution. No further action was taken by the school.
The opinion notes that this was not the first noose incident at the high school. “The previous year, Doug Giles, another African-American student, found a noose made out of a shoelace in his locker. Giles reported the incident to Defendant Davis, who then addressed the boys athletic class, telling them that such actions were unacceptable and would not be tolerated. When no one admitted his involvement in the incident, Davis ordered the students to run laps as punishment.”
Under subheading B of the opinion, called “Incidents Involving Racial Epithets and Slurs,” the court observes many, many incidents, including some of the following:
- “During their time in Marion ISD, Plaintiffs were the target of racial epithets and slurs. The earliest events began in kindergarten when Kyana was called a ‘nigger’ by a boy on the school bus. Kyana responded by punching the boy, for which she was disciplined. Kyana reported the boy’s statement to the bus driver, but it is unclear whether the boy was also disciplined.”
- “After Kyana’s class read Huckleberry Finn in middle school, some of the students started using the word ‘nigger’ outside the context of the book. Kyana reported this to her teacher, and the teacher then spoke to the class about the incident, making clear that the word should not be used outside of discussions of the book.”
- “Kyra received a text message from a classmate referring to her as a ‘stupid nigger’ after the 2008 presidential election. Kyra reported the incident to her middle school principal, who suspended Kyra’s classmate after explaining the inappropriate nature of the comment.”
- “During the 2009–2010 school year, a Caucasian student called Kyana a ‘stupid nigger.’ Kyana reported the incident to the principal, who then contacted the student’s mother and explained that the student had been told not to use such language. It is unclear whether the student received any additional punishment.”
- “In February 2011, a group of students surrounded Kavin. One of the Caucasian students hit Kavin and called her a ‘nigger.’ Kavin then punched the aggressor. After meeting with the two separately, the middle school principal suspended both Kavin and the aggressor for three days. The other student called Kavin a ‘nigger’ a week later, which Kavin reported to the principal. It is unclear whether the principal took any disciplinary action.”
- “A Caucasian classmate told a joke in class using the word ‘nigger.’ In response, the teacher told Kavin that the student ‘didn’t mean it like that.’ Kavin reported the incident to the principal, who called the student’s mother.”
- “Kyra received a text message from a Caucasian classmate that showed an animation of KKK members chasing President Obama. Kyra and the classmate had a physical altercation, and both students received three-day suspensions.”
- “Kavin tried out for the cheerleading squad, which prompted her peers to say that ‘Black girls [aren’t] pretty enough to be cheerleaders.’ In addition, several girls recorded her tryouts on their cell phones, spreading the video around the school with the title: ‘Little boy tries out for cheerleading.’ ”
- Ashley Smith, a Caucasian teacher who coached Kyana on the basketball team, told Kyana, in the midst of a discussion of bad influences, “You’re the bad influence. You’re the one who had a kid at 17.” Afterward, “Smith was suspended from coaching for one game and given an official reprimand from the school’s athletic director. A letter regarding the incident was also placed in Smith’s file.”
- “One of Kyra’s teachers told Kyra’s class that ‘all black people [are] on welfare.’ Kyra confronted the teacher about the statement, after which the teacher threatened to send her to the office if she ‘didn’t pipe down.’ ”
The school district did a few things to remedy the situation, for instance, it put on an assembly and did some extra training, the opinion notes, but it “refused to sign a resolution provided by the DOJ regarding the school’s policies.”
There is a good deal more in the opinion. It’s worth a read. Eventually the children were removed from the school district altogether, and they sued. The original suit against the school was dismissed by a lower court. The Court of Appeals set about analyzing whether Fennell had a claim. Confirming that “the racially offensive remarks and actions, especially in the two to three years immediately before this litigation, were sufficiently regular and continuous to constitute ‘severe, pervasive, and objectively offensive’ harassment,” the court found that the harassment indeed “deprive[d Plaintiffs] of access to the educational opportunities or benefits provided by the school.”
But the federal appeals court then found that the school’s response to this pattern of racial bullying and harassment was sufficient to show that the school district was not “deliberately indifferent to the harassment.” Why? Well, because “Marion ISD took some action in response to almost all of the incidents noted by Plaintiffs.” And “Marion ISD took relatively strong action to address the most egregious incidents.”
In addressing the multiple instances in which the school responded simply by contacting parents or asking students to run laps, the court determined that “taken together, these relatively weak responses to harassment are concerning but are not tantamount to Marion ISD intentionally ‘subject[ing] its students to harassment.’ ”
The court then goes on to dismiss the equal protection claims against the school staff members who said or did discriminatory things to the sisters because they could not show that the two teachers treated these children differently from similarly situated students.
So there you have it. No legal relief for repeated harassment. After years of vicious and relentless racial torment, in a mostly white school district, the district is off the hook because they did some things, on some occasions, to discipline some students. Kids will be kids.
Sorry about the nooses, and the slurs, and all those times we suspended you, Kyana and your siblings. It wasn’t intentional.
In the event you were wondering what post-racial America looks like this is it: It’s not post-racist. At least in some parts of Texas, racism, abuse, threats and shaming are as alive and well and crushing as they have ever been. It’s just post-remedy, post-sympathy, and post-relief.