Opinion
NA 00-0068-C-B/G
September 21, 2001
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendants' Motion for Summary Judgment. Plaintiffs filed suit under 42 U.S.C. § 1983 and 20 U.S.C. § 1681 ("Title IX") against various Hazelwood Junior High School officials, individually and in their official capacities for the New Albany/Floyd County Consolidated School Corporation ("School Corporation"), for damages resulting from the disciplinary paddling and alleged peer harassment of B.A.L, a female student at Hazelwood. Defendants contend that Plaintiffs have not demonstrated a violation of any cognizable constitutional right; Plaintiffs have not shown the necessary policy or custom to support suits against Defendants in their official capacities; and school officials sued as individuals acted under qualified immunity in administering the discipline at issue.
Defendants also contend that Plaintiffs have failed to provide evidence on necessary elements of the alleged Title IX violation. Plaintiffs respond by reiterating the allegations in the Complaint: Defendants' disciplinary actions violated B.A.L.'s rights under the Fourteenth Amendment and state law, and school officials denied B.A.L. due process and equal protection of the law by disciplining her in an inappropriate fashion. For the reasons set forth below, we GRANT Defendants' Motion for Summary Judgment. In addition, we DENY as moot Defendants' Motion to Strike.
Plaintiffs make only vague, passing references to Indiana child protection statutes, leaving us to wonder how state law relates in any way to this case. Because Plaintiffs have failed to provide any link between their factual allegations and potential state law claims, such claims are deemed waived and dismissed without prejudice.
We must note at the outset our frustration over the fact that briefing by the parties in this matter was at best weak and certainly less than helpful to the Court, managing to cloud even the most basic issues, including the identification of the causes of action at the heart of this dispute. The Court should not be placed in the position of having to do the lawyering as well as the judging, which is what has happened here.
Factual Background
By all accounts, eighth grade was a difficult year for B.A.L. At the start of the 1997-98 school year, B.A.L. transferred from Scribner Junior High School to Hazelwood as a special education student to be mainstreamed into regular classes. (Compl. ¶ 12.) In her new school environment, B.A.L., who was more physically developed than other female students in her class, was targeted by several male students for harassment and sexual remarks. (Id. ¶ 12.) B.A.L and her mother "tried to tell teachers, school personnel and [Assistant Principal] Traub about the sexual harassment," but the situation did not improve. (Pls' Resp. to Mot. for Summ. J., Statement of Material Facts ¶ 6.) During this period, school officials tallied 21 incidents of unexcused tardiness, 26 unexcused absences, seven incidents of suspension, and "numerous incidents of disruptive behavior" on the part of B.A.L. in the single school year between August 1997 and April 1998. (Mot. for Summ. J. ¶ 2-3.)
On April 21, 1998, B.A.L. "jabbed" a male classmate with a pen after he "threatened to poke her breast and made a lewd[,] offensive remark." (Compl. ¶ 15.) Both students were sent to the office, where they spoke with Defendant Traub. (Id.) Following assessment of the situation, Traub sent the male student back to his classroom without imposing any disciplinary measures. (Id. ¶ 16.) B.A.L. was detained in the office, however, and her mother, Plaintiff Dawn Linne, was contacted regarding disciplinary options for her daughter. (Id.) Ms. Linne was offered a choice: B.A.L. could either receive a two-day, out-of-school suspension or three swats of a paddle, administered by school officials. (Id.) The School Corporation maintained an official policy regarding corporal punishment, which reads in relevant part:
Corporal punishment may be used, but only after other disciplinary measures have failed to correct the behavior of the student.
Corporal punishment shall be administered in a manner to avoid the likelihood of substantial physical injury to the student under the following Policy guidelines:
1. The Student will be informed, in advance of the punishment, of the reasons for the use of corporal punishment and be given the opportunity to state his/her reasons why such punishment should not be used.
2. A teacher or building administrator will administer the corporal punishment in the presence of a second school official who shall be informed beforehand, and in the presence of the student, of the reason for the punishment.
3. Corporal punishment shall not be administered in the presence of any other students.
4. The official who has administered corporal punishment must provide the student's parents, upon request, a written explanation of the reasons for the punishment and the name of the second official who was present.
5. Each instance of administering corporal punishment shall be reported to the Superintendent's Office on the proper form.
(Mot. for Summ. J., Statement of Material Facts, at 10-11.) Because B.A.L. had accumulated so many absences, Ms. Linne decided against the out-of-school suspension and "reluctantly agreed to the paddling." (Id. ¶ 17.) Ms. Linne came to the school and witnessed the paddling, which was administered by Defendants Cerqueira and Traub in the school vault. (Id. ¶ 18.) B.A.L. received a total of three swats with the two-foot paddle, resulting in bruising to her buttocks. (Id.) B.A.L.'s pain from the paddling persisted through the day, and after school Ms. Linne sought medical attention for her at the Floyd County Memorial Hospital. (Id. ¶ 21.) Ms. Linne also notified the Floyd County Division of Family and Children, "which determined there had been abuse by inappropriate discipline." (Id. ¶ 22.) Plaintiff subsequently filed suit against certain named officials of the School Corporation.
Defendants assert that, in a December 7, 2000 pretrial conference, Plaintiffs "agreed to dismiss claims as to Herman Healy in his official capacity as Attorney for New Albany/Floyd County Consolidated School Corporation" Mot. for Summ. J. at 4, n. 1.), as well as Dr. Suellen Reed in her official capacity as Superintendent of the Indiana Department of Education. On February 16, 2001, we dismissed Reed from the lawsuit as a nominal party. However, no motion to dismiss Healy has been filed with the Court, and no order has been entered dismissing him from this lawsuit. In fact, Plaintiffs and Defendants have repeatedly named him as a defendant in filings subsequent to the December 7, 2000 conference.
Standard of Review Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The mere existence of a factual dispute will not bar summary judgment; the facts in dispute must be outcome-determinative. Id. In considering a motion for summary judgment, a court must review the record and draw all reasonable inferences in the light most favorable to the non-moving party. Id. at 255; Del Raso v. United States, 244 F.3d 567, 570 (7th Cir. 2001). "[A] party will be successful in opposing summary judgment only when they present definite, competent evidence to rebut the motion." Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). Summary judgment is required only if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his or her case. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed 265 (1986).
Discussion
1. § 1983 Claims
Defendants move for summary judgment, arguing that Plaintiffs have failed to plead the existence of a custom or practice that directly led to the alleged constitutional deprivation. Municipal liability under § 1983 requires a plaintiff to establish the existence of a policy or custom causally connected to the alleged constitutional injury. Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397, 403-04 (1997); Smith v. Chicago School Reform Bd. of Trustees, 165 F.3d 1142, 1149 (7th Cir. 1999). This requirement may be satisfied by showing an express policy, custom, or official action by a duly authorized municipal decisionmaker. Monell v. Dep't of Social Servs. of the City of New York, et. al, 436 U.S. 658, 690-91 (1978); Horwitz v. Bd. of Educ. of Avoca School Dist. No. 37, 2001 WL 840531, at *13 (7th Cir. July 26, 2001). However, to establish the existence of a policy or custom, a plaintiff must offer more than isolated incidents of constitutional deprivation. Gustafson v. Jones, 117 F.3d 1015, 1022 (7th Cir. 1997), citing Brown, 520 U.S. 397. A plaintiff must show "that the municipal action was taken with the requisite degree of culpability and must demonstrate a causal link between the municipal action and the deprivation of federal rights." Brown, 520 U.S. at 404. As this court has noted, a school system may be liable for constitutional violations by its agents if "the enforcement of its policy was the `moving force' behind the constitutional violation." Higginbottom ex rel. Davis v. Keithley, 103 F. Supp.2d 1075, 1084 (S.D.Ind. 1999).
Although the School Corporation maintained an official policy regarding corporal punishment, Plaintiff has offered no evidence that enforcement of this policy as written necessarily led to the alleged constitutional injury. By its terms, the policy does not prescribe the amount of force to be used in relation to a student's offense, though this factor weighs heavily into determining whether corporal punishment violates due process. See discussion infra. Moreover, Plaintiff offers no evidence of other incidents of excessive corporal punishment administered under the policy, involving B.A.L. or any other student. The Complaint merely asserts that "Mr. Cerqueira had paddled 4 or 5 other students that year but all of those students had been males. Ms. Traub had paddled some herself," (Compl. ¶ 19), and the Response to the Motion for Summary Judgment does not even address the frequency or nature of paddling incidents by Defendants or the number of times the students were hit with the paddle.
Plaintiffs allege that B.A.L. was disciplined "in an inappropriate fashion," but it is nowhere made clear how that translates into a constitutional violation. Conclusory statements, without more, cannot support suits against school officials in their official capacities. As Plaintiff has failed to provide evidence on this essential element, Defendants' Motion for Summary Judgment with respect to the official capacity suits is GRANTED.
Defendants also contend that two of the named Hazelwood school officials acted under qualified immunity, pursuant to § 1983. Qualified immunity is available only to officials with discretionary or policymaking authority when sued in their individual capacities under § 1983. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993); Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir. 2000). Essentially, this defense is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). It is well established that school officials enjoy qualified immunity for "good faith, nonmalicious action taken" in carrying out their official duties. Wood v. Strickland, 420 U.S. 308, 318, 96 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975). Officials acting under qualified immunity are not subjected to suit "unless their actions violate clearly established statutory or constitutional rights then known to a reasonable officer." Ulichny v. Merton Cmty. Sch. Dist., 249 F.3d 686, 706 (7th Cir. 2001).
The analysis of a qualified immunity defense requires an ordered, two-step inquiry. First, the Court must determine "whether a constitutional right would have been violated on the facts alleged." Saucier v. Katz, 121 S.Ct. 2151, 2155 (2001). For this purpose, we examine the facts in the light most favorable to the party asserting the injury. Siegert v. Gilley, 500 U.S. 226, 232 (1991).
We confine our focus to Plaintiffs' allegation of a due process violation. Plaintiffs also allege a violation of equal protection, based on the different disciplinary measures imposed on B.A.L., a female student, and the male classmate involved in the altercation, citing this Court's holding in Heller v. Hodgin, 928 F. Supp. 789 (S.D.Ind. 1996). This argument has no merit, however. In Heller, we acknowledged the three common types of equal protection suits identified by Chief Judge Posner: purposeful discrimination against members of disadvantaged groups, irrational group classifications, and spiteful state actions unrelated to any legitimate purpose. Id. at 795-96. To establish unlawful discrimination against members of a disadvantaged group, a plaintiff must show that a state actor purposefully discriminated on the basis of that affiliation. Indianapolis Minority Contractors Ass'n, Inc. v. Wiley, 187 F.3d 743, 752 (7th Cir. 1999). Plaintiffs have alleged only that the male student received a lesser punishment than B.A.L. on one occasion. They simply offer no evidence to support the contention that school officials engaged in purposeful discrimination, and they do not refute Defendants' assertion that the disparate punishment levels corresponded to the individual students' disciplinary histories. Likewise, they provide no evidence that any of the school officials' actions was motivated by spite or any other illegitimate purpose. Accordingly, Defendants' Motion for Summary Judgment on Plaintiffs' equal protection claims is GRANTED.
The Supreme Court in Ingraham v. Wright, 430 U.S. 651 (1977), set out the due process requirements precedent to corporal punishment. Using its familiar due process analysis, the Court first identified the constitutionally protected interest at stake in corporal punishment cases: "the freedom from bodily restraint and punishment." Id. at 674. The Court then determined that protecting this interest did not mandate additional procedures. Id. at 682. State common law remedies provided sufficient protection. Id. "Thus, `as long as disciplinary corporal punishment is within the limits of the common law privilege,' its use does not constitute a violation of Due Process." Cole by Cole v. Greenfield-Central Comm. Schools, 657 F. Supp. 56, 59 (S.D.Ind. 1986), quoting Ingraham, 430 U.S. at 676.
Cole provides an instructive model for resolving the present dispute. In that case, the court analyzed the due process implications of paddling by school officials under Indiana law. 657 F. Supp. at 60-61. An emotionally disabled student sued school officials for the imposition of various disciplinary measures, including three strokes with a two-foot long paddle. Id. at 61. The court relied on four factors to determine whether the disciplinary paddling fell within Indiana's common law privilege:
(1) The teacher must have the general authority to inflict corporal punishment on the pupil; (2) the rule violated must be within the scope of the educational function; (3) the violator of the rule must be the one punished; and (4) the punishment inflicted must be in proportion to the gravity of the offense.
Id. at 60 (citation omitted). Because Indiana law generally permits the use of corporal punishment by school officials, Ind. Code § 20-8.1-5-2, the court narrowed its inquiry to the three remaining fact-dependent elements. The court found that the actions of school officials were supported by "the need to maintain order in the classroom and the need to protect the safety of the children," thereby satisfying the second element of the test. Id. at 60. The third element was satisfied by evidence that the challenged discipline was only administered following incidents of misconduct witnessed by school officials. Id. at 60-61. The propriety of the paddling, the court concluded, turned on its proportionality to the seriousness of the offense. The plaintiff had been caught "running over some smaller children." Id. at 61. The subsequent paddling, inflicted by school officials after the student's father said that the practice "merited consideration," was not excessive under the circumstances and therefore the school officials who administered the punishment were protected under Indiana common law. Id. at 61.
Factually, the present case bears strong similarity to Cole. Here, B.A.L., a special education student, had established a record of disruptive behavior. The pen-poking incident for which B.A.L. was disciplined potentially jeopardized the physical safety of at least one other student. The discipline at issue was administered only after school officials established that Plaintiff was in fact the perpetrator.
Finally, school officials contacted B.A.L.'s mother to offer two punishment options, one of which was corporal punishment. B.A.L.'s mother chose the corporal punishment option, and in her presence, school officials imposed the same type of punishment as was imposed upon student Cole.
Procedurally, however, this case differs from Cole in that we must determine the application of qualified immunity in the context of summary judgment, mandating that we view the facts in the light most favorable to Plaintiffs. Plaintiffs contend and offer evidence that the blows received by B.A.L. resulted in serious bruising and caused severe pain. Viewing the facts in the light most favorable to Plaintiffs, the degree of the injury resulting from the paddling could support a due process violation under Indiana law.
"[I]f a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Saucier, 121 S.Ct. at 2156. This determination must be made in light of the context surrounding the alleged violation. Id. A right may be clearly established "if it is so obvious that a reasonable state actor would know that what they were doing violated the Constitution or if a closely analogous case establishes that the conduct is unconstitutional." Willits v. Wal-Mart Stores, Inc., 2001 WL 1028482 (S.D.Ind. Aug. 14, 2001), citing Siebert v. Severino, 256 F.3d 648, 654-55 (7th Cir. 2001). Conversely, if reasonable officials could disagree on the issue, a right is not clearly established. Ulichny, 249 F.3d at 706; Hinnen v. Kelly, 992 F.2d 140, 142-43 (7th Cir. 1993).
Even in the light most favorable to Plaintiffs, the facts here suggest strongly that Defendants reasonably believed their conduct toward B.A.L. comported with due process. The procedures for administering the discipline at issue followed closely the School Corporation policy, and the uncontroverted evidence establishes that the policy terms were in fact enforced as to B.A.L. Plaintiffs have not offered, and the Court has not found, any closely analogous cases that should have put Defendants on notice that their conduct was unconstitutional. Indeed, Cole, the most factually similar case the Court has found, from the Southern District of Indiana, indicates that Defendants' conduct was constitutional.
Plaintiffs allege that Defendants violated B.A.L.'s due process rights because, as a special education student, B.A.L. was entitled to more elaborate procedures than a regular student. However, it is clear that "`[h]andicapped children are neither immune from a school's process nor are they entitled to participate in programs when their behavior impairs the education of other children in the program.'" Cole, 657 F. Supp. at 58, quoting Stuart v. Nappi, 443 F. Supp. 1235, 1243 (D.Conn. 1978). The case law and statutory provisions Plaintiffs cite in support of heightened due process requirements deal with the expulsion or temporary termination of educational services to a special education student.
There was no such termination in this case; B.A.L. simply received discipline for unacceptable behavior in the classroom. Plaintiffs fail to provide support for the claim that such ordinary discipline necessitated enhanced procedures.
Although Plaintiffs have proffered sufficient evidence to state a claim for a due process deprivation, we conclude that Defendants Cerqueira and Traub acted under qualified immunity in disciplining B.A.L. Accordingly, Defendants' Motion for Summary Judgment on due process claims against Cerqueira and Traub in their individual capacities is GRANTED.
2. Title IX claim
Defendants also move for summary judgment, claiming that Plaintiff has failed to provide evidence on necessary elements of a claim for gender discrimination under Title IX of the Education Amendments of 1972. Title IX provides:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.20 U.S.C. § 1681(a). The statute permits private rights of action against educational institutions. Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75-77 (1992); Cannon v. Univ. of Chicago, 441 U.S. 677, 694-96 (1979). There exist three basic types of sexual harassment claims under Title IX: quid pro quo; hostile environment, and peer-to-peer. Mary M. v. North Lawrence Community School Corp., 131 F.3d 1220, 1226 n. 7 (7th Cir. 1998) (citations omitted). Although Plaintiffs do not specify which theory of harassment they intend to advance, the Complaint seems to allege that Defendants created or perpetuated a hostile environment by imposing a more stringent punishment on B.A.L. than on her male colleague involved in the pen-poking incident. To state a claim for hostile environment sexual harassment under Title IX, a plaintiff must prove: "(1) plaintiff belongs to a protected group; (2) plaintiff was subjected to harassment; (3) the harassment was based on sex; (4) the harassment was so pervasive of severe that it altered the conditions of plaintiff's education; and (5) knowledge by school officials." Id. at 1228.
B.A.L., a female student, obviously falls within a protected class. In addition, as Defendants Cerqueira and Traub were present for the punishment, their knowledge of the event is also arguably established. Even assuming these two elements have been satisfied, however, Plaintiffs' claim still must fail. They simply offer no evidence to establish that the imposition of more serious disciplinary measures on B.A.L. was based on gender rather than her record of misconduct, or that the single incident was sufficiently severe as to alter the conditions of B.A.L.'s education. Given the lack of evidence submitted on these elements, no reasonable jury could find in favor of Plaintiffs on these claims.
Therefore, Defendants' Motion for Summary Judgment is GRANTED.
Conclusion
Defendants moved for summary judgment on claims arising under both 42 U.S.C. § 1983 and 20 U.S.C. § 1681. Plaintiffs' response failed to provide evidence of a policy or custom sufficient to support the suits against Defendants in their official capacities. In addition, Defendants sued in their individual capacities acted with qualified immunity in imposing discipline on B.A.L. Therefore, we GRANTED summary judgment on these claims. In addition, as Plaintiffs have failed to provide evidence to address necessary elements of a Title IX violation, we GRANTED summary judgment on these claims. Accordingly, Defendants' Motion to Strike is DENIED as moot.
Defendants' Motion for Summary Judgment does not address claims arising under the IDEA, 20 U.S.C. § 1412, or Title IX claims regarding school officials' failure to remedy harassment of B.A.L. by her peers, referenced obscurely but substantially unsupported in the Complaint or Plaintiffs' Response (titled "Reply") to the Motion for Summary Judgment. Plaintiffs have wholly failed to provide the factual or legal basis for these statutory claims. Indeed, we can imagine no set of facts upon which Plaintiffs could maintain such claims. Therefore, these claims are dismissed without prejudice.