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

JACOBS, Circuit Judge:

The complaint in this civil rights action alleges that defendants-appellees the Wall-ingford 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.

BACKGROUND

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 Wall-ingford, 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

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:

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-appel-lee 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:

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:

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 Cirasuo-lo’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:

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.

After recounting these incidents, Superintendent Cirasuolo concluded that “[tjhere 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 Cirasuo-lo 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 December 2, 1994. In doing so, the district court relied heavily upon the Superintendent’s Report. The full text of the district court’s opinion is as follows:

The Gants filed a motion for reconsideration on December 12,1994. On January 30,1995, the district court granted the motion for reconsideration but denied substantive relief. The Gants did not seek to amend their complaint. This appeal followed.

DISCUSSION

A district court’s grant of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is reviewed de novo on appeal. Grimes v. Ohio Edison Co., 992 F.2d 455, 456 (2d Cir.),

cert. denied, — U.S. —, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993). “In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts- alleged in the complaint as true and construe all reasonable inferences in plaintiffs favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, — U.S. —, 115 S.Ct. 117, 130 L.Ed.2d 63 (1994). The complaint may be dismissed only where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Allen v. West-Point-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). The issue is not whether a plaintiff is likely to prevail ultimately, “but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.” Weisman v. LeLandais, 532 F.2d 308, 311 (2d Cir.1976) (per curiam) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)). “This standard is applied with even greater force where the plaintiff alleges civil rights violations....” Hernandez, 18 F.3d at 136.

The complaint seeks recovery under 42 U.S.C. §§ 1981, 1983, 1985(3) and 1986. The district court, which dismissed the complaint for failure to plead discrimination, • did not consider which of the civil rights statutes might furnish a remedy. We proceed on the assumption that a civil rights violation could be made out under one or more of these civil rights statutes if the complaint contains a sufficient allegation of discrimination.2 In essence, plaintiffs allege that the Wallingford school officials, acting under color of state law, conspired to deprive Ray, Jr. of equal access to education because he is an African-American. In order to survive a motion to dismiss under any of the civil rights statutes invoked, “the plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent.” Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir.1994). On appeal, defendants argue that plaintiffs have failed to meet this standard because the complaint alleges no more than that Ray, Jr. is African-American and that defendants and others associated with the school are not.

A. “Naked Assertions”. In dismissing plaintiffs’ complaint, the district court relied on the following passage from Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978) (per curiam): “It is well settled in this Circuit that a complaint consisting of nothing more than naked assertions, and setting forth no facts upon which a court could find a violation of the Civil Rights Acts, fails to state a claim under Rule 12(b)(6).” We conclude that, under this standard, the complaint survives scrutiny under Rule 12(b)(6).

The complaint in Martin “stated only that •the defendants had discriminated against [Martin] on the basis of race between August 1974 and June 1975 by denying him the authority, salary, and privileges commensurate with his position.” Id. at 372 (emphasis added). The Gants’ complaint states or can be read to claim that Ray, Jr. “had the same or similar skill levels” as other students in his class, yet was transferred to a lower grade in an effort to allay the racial tension caused by the child’s presence, and that this was done without parental consultation and consent notwithstanding a school policy requiring parental consultation and consent for demotion. At this preliminary stage of proceedings, all one can say is that, if these plaintiffs have capacity and standing to assert these allegations and have the ability to prove them under a statute that grants relief, they will have established liability against a defendant unable to interpose a sufficient defense. But that is enough to defeat the characterization of this discrimination claim as mere “naked allegations.”

B. Fed.R.Civ.P. 10(c). Another stated reason for the district court’s dismissal of this claim is that “plaintiffs have appended as an exhibit to their complaint” the Superintendent’s Report, and that by so doing the plaintiffs necessarily incorporated the report into their complaint in such a manner as to accept all statements in it as true, including the exculpatory conclusions. As the district court thus read the complaint, the Gants affirmatively pleaded and adopted the following conclusions of the Superintendent’s Report, thereby contradicting and defeating their own claim:

The Superintendent’s Report also states that Ray, Jr. was struggling academically while in the first grade both in the Meriden school system and in Wallingford, which contradicts the express allegation of the complaint that Ray, Jr. “had the same or similar skill levels” as the other first graders. Clearly, if these conclusions and statements are deemed to be part of the complaint, the Gants would be unable to sustain their lawsuit. We conclude, however, that the district court misapplied Fed.R.Civ.P. 10(c). Rule 10(c) states:

Thus, “[a]lthough a court considering a motion to dismiss for failure to state a claim is limited to the facts stated in the complaint, the complaint includes any written instrument attached to it as an exhibit and any statements or documents incorporated into it by reference.” Paulemon v. Tobin, 30 F.3d 307, 308-309 (2d Cir.1994); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992).

Both the district court and the defendants assume that Rule 10(c) requires a plaintiff to adopt as true the full contents of any document attached to a complaint or adopted by reference. This is not a proper reading of the rule. Courts have found that, “[i]f the appended document ... reveals facts which foreclose recovery as a matter of law, dismissal is appropriate,” Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir.1974) (prospectus attached to complaint alleging bond purchase based on material misrepresentations). An appended document will be read to evidence what it incontestably shows once one assumes that it is what the complaint says it is (or, in the absence of a descriptive allegation, that it is what it appears to be). For example, a written contract appended to the complaint will defeat invocation of the Statute of Frauds, and a document that discloses what the complaint alleges it concealed will defeat the allegation of concealment. By the same token, however, a libel plaintiff may attach the writing alleged in the complaint to be libelous without risk that the court will deem true all libels in it. Similarly, a receipt for goods, alleged in the pleading to have been forged, may or may not evidence forgery on its face, but it does not concede delivery of goods for pleading purposes.

The Superintendent’s Report is referenced as follows in the complaint: “The defendant, Dr. Joseph Cirasuolo in his administrative capacity adopted, approved and/or ratified the actions and/or omissions of the defendants, Grace Candido and Patricia Cronin. (Refer to Exhibit B attached.)” What is the import of attaching Exhibit B? Al

though attached to show Cirasuolo’s adoption, approval or ratification of wrongdoing, it does not (in itself) do so, if only because it concludes that no wrong was done. Under Rule 10(c), if we assume that the document is what it is alleged and purports to be, it would effectively refute any (hypothetical) allegation that Cirasuolo prepared no report, or prepared one that admitted wrongdoing on behalf of the school district. But Exhibit B does not bear the weight placed on it by the district court: it does not establish, simply by being what it is, that the school personnel acted properly. Given the allegations of the complaint that we must accept as. true, the Gants have invited us to read Exhibit B as a self-serving document rather than a particularization of their claim. It was therefore error for the district court to assume that plaintiffs’ complaint adopted the Superintendent’s exculpatory conclusions. Cf. Rose v. Bartle, 871 F.2d 331, 340 n. 3 (3d Cir.1989) (discussing the inapplicability of Rule 10(c) to affidavits).

C. Discretionary Powers. Relying on Johnpoll v. Elias, 513 F.Supp. 430 (E.D.N.Y.1980), defendants contend on appeal that issues of student placement are left solely to the discretion of school officials, and that nothing in the Constitution grants anyone an “interest in the transfer of a student from first grade to kindergarten.” The complaint in Johnpoll alleged that the student’s due process rights were violated by placement in an inferior school that would stunt his emotional development. Acting on the student’s behalf, his father brought suit seeking a preliminary injunction directing the New York City Board of Education to transfer the boy to a school of the student’s choosing.

The Johnpoll court acknowledged that “once a state like New York chooses to provide public education, ... the right to an education ‘must be made available to all on equal terms,’ ... and this property interest cannot be denied without certain minimum procedures required by the Due Process Clause.” Id. at 431 (quoting Brown v. Board of Education 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1953)). However, the Johnpoll complaint did not allege that the placement decision was made on unequal or impermissible terms, or without due process of law. In rejecting the claim, the Johnpoll court found that the case did not

513 F.Supp. at 431-32. We have no occasion to endorse or reject the reasoning of John-poll, because that case is easily distinguishable from the appeal before us, in which the complaint essentially pleads an equal protection claim based on a short and direct chain of causation between Ray, Jr.’s race and his pedagogically unjustified demotion.

Although few adults will be able to recall the curriculum at each level of primary education, kindergarten differs substantially from first grade. For one thing, as confirmed at oral argument and in the briefs, kindergarten meets for only part of the school day. In the absence of a record on this subject, we have no difficulty accepting the idea that a student who has mastered kindergarten will learn less by repeating it than by being promoted to the next grade. Demotion, even at this rudimentary stage of education, may permanently delay the student’s ultimate academic goals. We reject defendants’ suggestion that a school’s decision to make such a transfer based on a student’s race (as alleged here) is unreviewable by the federal courts.

CONCLUSION

The district court’s judgment is vacated and the case remanded for further proceedings. We offer no opinion as to the merits of defendants’ numerous alternative arguments for dismissal of the complaint raised in their original motion to dismiss and not yet considered by the district court.

VAN GRAAFEILAND, Circuit Judge,

concurring in part and dissenting in part:

In recent weeks, there have been nationwide lamentations over what was deemed to be a resurgence of racial animosity. There are numerous reasons for this unfortunate animosity, one of which is the bringing of baseless lawsuits alleging constitutional discrimination. I am convinced that this is such a lawsuit. Accordingly, although I concur with my colleagues that the Rule 12(b)(6) dismissal of the infant’s claims cannot stand, I would be derelict in my duty to both the parties and our busy district courts if I did not express the reluctance with which I do so.

The Name-Calling

At the outset, I cannot emphasize too much that we are dealing here with six-year-old children who, despite their tender years, have the same First Amendment rights as do adults. Indeed, because of the infants’ immaturity, the test of “fighting words” (words that by their very utterance tend to incite immediate violence or breach of the peace, see NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927, 102 S.Ct. 3409, 3433, 73 L.Ed.2d 1215 (1982); Gooding v. Wilson, 405 U.S. 518, 523, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408 (1972)) should be more generously applied to them than would be the case with mature adults. Children do not think or behave like adults. Generations of them have recited the doggerel “Sticks and stones may break my bones, but names will never hurt me.” I would hold, therefore, that when one six-year-old child calls another “chocolate drop” or “nigger,” and no violence or breach of the peace results, the infant, knowingly or not, is exercising his right of free speech and is not guilty of actionable wrongdoing. “The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.” Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106 S.Ct. 3159, 3164, 92 L.Ed.2d 549 (1986). A teacher may attempt to acquaint her youthful charges with some of the social graces; however, the Constitution does not compel her to do so. Instead, it limits the teacher’s activities to those which do not violate specific constitutional guarantees. See Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 1003, 43 L.Ed.2d 214 (1975). As District Judge Gare nicely put it in Stanton v. Brunswick School Dep’t, 577 F.Supp. 1560, 1575 (D.Me.1984):

We are not concerned here with an ordinance or regulation which arguably may be so construed as to eliminate First Amendment protection because of improper reference to race or religion. Our colleges have learned to their dismay how difficult it is to craft rules and regulations that allow of only one construction. See, e.g., U.W.M. Post, Inc. v. Board of Regents of the Univ. of Wisc. Sys., 774 F.Supp. 1163 (E.D.Wisc.1991). Thus, the word “nigger” may or may not be constitutionally offensive depending on the context in which it is used. Cf id. at 1180. So far as incidents even remotely subject to school control are concerned, the issue here involves the spontaneous utterances of children, who are too immature to understand the real meaning of racial prejudice. As in the field of tortious speech, an infant must appreciate the offensiveness or wrongfulness of his words before he can be held hable therefor. See, e.g., 2 Harper, James & Gray, The Law of Torts § 8.13 at 590 (2 ed.1986); Cleveland Park Club v. Perry, 165 A.2d 485, 487 (D.C.1960); Horton v. Reaves, 186 Colo. 149, 155, 526 P.2d 304 (1974). If, as appellants suggest, the school were to punish these youngsters for their protected speech, it might well be shifting liability exposure from one constitutional offense to another, and at the same time be creating a greater barrier to improved race relations than might result from simple name-calling.

The Transfer to Kindergarten

Although I concur with the majority’s Rule 12(b)(6) conclusion, I am skeptical of appellants’ claim that it was appellees’ racial prejudice against the infant Ray Gant, Jr. that motivated his transfer to kindergarten. My skepticism is based upon both the inherent unlikelihood that such vindictive motivation against a six-year-old child existed and also upon the asserted facts, not the “exculpatory conclusions,” contained in Exhibit B attached to the complaint. In paragraph 19 of the complaint, plaintiffs alleged that Board Superintendent Joseph Cirasuolo “adopted, approved and/or ratified the actions and/or omissions of the [defendant teachers],” and concluded these allegations with the words “Refer to Exhibit B attached.” If the contents of Exhibit B were not intended to support the allegation of adoption, approval, etc., it is difficult to understand why they were referred to. “In determining the adequacy of a claim under Rule 12(b)(6), consideration is limited to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference_” Allen v. West-Point-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991); see also Paulemon v. Tobin, 30 F.3d 307, 309 (2d Cir.1994); Hertz v. City of New York, 1 F.3d 121, 125 (2d Cir.), cert. denied, — U.S. —, 114 S.Ct. 1054, 127 L.Ed.2d 375 (1993). I do not suggest that the contents of Exhibit B, standing alone, warrant affirmance of the district court’s Rule 12(b)(6) order. I do suggest, however, that the contents were incorporated in the complaint and therefore may properly be considered in both the district court and this Court.

The Superintendent’s report, with all con-clusory statements deleted, reads as follows:

The student’s first day at Cook Hill was 2/24/93. It was almost immediately apparent to his teacher, Mrs. Candido, that he was having serious difficulty with reading instruction. His inability to do the work quickly transformed into an unwillingness to attempt any reading work despite special efforts made by the teacher to assist him. He would not even open a reading book and his frustration caused him to cry when reading time occurred.

early in September 1993. To date, the Gants have not returned signed approval forms.

Appellants have given us no reason to believe that the facts as above stated are not substantially true. For example, when one reads the allegation in the complaint that the infant plaintiff had the “same or similar skill levels” as the other students enrolled in his first grade class, one cannot help but wonder whether this allegation has any foundation in fact. Making allowance for normal parental exaggeration, one may perhaps accept the senior Gants’ appraisal of their son’s skill levels. However, the same is not true of his classmates for ten days, whose skills obviously were unknown to either the Gants or their lawyer. Under the circumstances, the certification of plaintiffs’ signatory attorney that, to the best of his knowledge, information and belief formed after reasonable inquiry, the above allegation has evidentiary support, is at best a questionable practice. See, e.g., Levine v. F.D.I.C., 2 F.3d 476, 479 (2d Cir.1993) (upholding imposition of sanctions for Fed.R.Civ.P. 11(b)(3) violation). My colleagues’ comment that “in a studious way, plaintiffs’ lawyer seems to avoid commitment on an issue that is potentially significant,” supra, at 671, is an understatement when considered against the attorney’s obligation as an officer of the court.

In Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968), the Court made the following oft-quoted statement:

'Despite the “studious” efforts of. Gant’s attorney to depict a violation of the infant plaintiffs basic constitutional rights, I am satisfied that there was no such violation. I regret that appellees must be subjected to the emotional and financial trauma of defending against a lawsuit with punitive damage exposure that I am convinced is without merit.

The Parents’ Claim

Although I concur in the majority’s opinion with respect to the infant Gant, unlike my colleagues, I would resolve the issue of the parents’ claims, which are predicated on the wrong allegedly inflicted on their son. It is well-settled law that a civil rights suit is a personal suit and one may not recover damages for the violation of another person’s constitutional rights, even though that person may be a close relative such as a child. See, e.g., Barrett v. United States, 622 F.Supp. 574, 591 (S.D.N.Y.1985), aff'd on other grounds, 798 F.2d 565 (2d Cir.1986); Fobbs v. Holy Cross Health Sys. Corp., 29 F.3d 1439, 1447-48 (9th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 936, 130 L.Ed.2d 881 (1995); Javits v. Stevens, 382 F.Supp. 131, 135 (S.D.N.Y.1974); Coon v. Ledbetter, 780 F.2d 1158, 1160-61 (5th Cir.1986); Dohaish v. Tooley, 670 F.2d 934, 936 (10th Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982); O’Malley v. Brierley, 477 F.2d 785, 789 (3d Cir.1973); Broadnax v. Webb, 892 F.Supp. 188, 190 (E.D.Mich.1995). Accordingly, whatever disposition is made of the claim of Ray Gant, Jr., the claim of his parents to recover for their alleged anxiety and emotional stress cannot stand. I would affirm the dismissal of the parents’ claim.