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The White teacher who was under fire for making a noose symbol toward a Black student won’t face charges after the Santa Clara County District Attorney’s Office deemed it wasn’t a hate crime.

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San Jose police determined that the teacher’s actions amounted to a hate incident—but not a hate crime.

 “Actions such as this that occurred are not tolerated,” said San Jose Police Chief Eddie Garcia according to theEast Bay Times. “The case was taken to the District Attorney’s Office, was deemed to be a hate incident and not hate crime, so there were no charges filed,” he said earlier this month.

Prosecutors said the teacher never made physical contact and it would prove difficult to convince a jury that the student felt threatened by the teacher’s insensitive gesture.

On Tuesday, District Attorney Jeff Rosen said the teacher should do better when interacting with students.

“Although this behavior did not meet the elements of a crime, it also did not meet the elements of how people should treat one another,” Rosen said Tuesday. “If someone’s ignorance crosses the line into criminality, my office will not hesitate to prosecute.”

Rev. Reginald Swilley, co-chair of the Black Leadership Kitchen Cabinet was unhappy with the outcome.

“The psychological intimidation of a minor should be a hate crime,” said Swilley who was one of the first to shed light on the issue back in June.

“We are over-prosecuted and under-protected,” Swilley said. “A black child should have the comfort that the people we pay to protect him will enforce the law when he is a victim just as much as when he is an aggressor.”

“The school system is supposed to nurture him and educate him,” he said. “What we’re finding out is this type of issue is causing kids to feel like outsiders on their own school campus.”

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The teacher in question was reportedly talking to a group of football players on April 30 when the teacher wrapped an exercise rope around his own neck, to demonstrate a hanging. The teacher claims that the racially charged move was a joke, but the student who was targeted didn’t find it funny. He was the only Black student present.

“It scared the kid and crushed him,” said Swilley.

“Children are trying to be educated in an environment where they’re being threatened. Our community is very upset, and nobody did anything until the community spoke.”

The student also reported that the Santa Teresa High School teacher also made a lewd comment against him that same day.

The teacher has been on paid administrative leave and the East Side Union High School District board of trustees has moved to dismiss the teacher. A hearing before an administrative law judge is scheduled for October.