Opinion
Case No. C2-99-830
April 25, 2001
OPINION AND ORDER I. INTRODUCTION
This matter is before the Court on the Motion for Summary Judgment filed by the Defendants, Worthington Schools, Worthington City Board of Education, Damon Asbury and Lenn Turner. The Plaintiffs, Damien and Darien Payne, minors, have filed suit through their mother, Chally Payne, alleging, among other claims, racial discrimination and harassment under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For the following reasons, the Defendants' Motion is GRANTED in part and DENIED in part.
The Plaintiffs' First Amendment claim has been abandoned.
II. FACTS
Damien and Darien Payne are two juvenile African-American students who attended Worthington Schools. Damien was approximately ten years old at the time that the alleged discrimination began, while Darien was approximately eight. Both students attended Worthington Estates Elementary School and Slatehill Elementary School. The Plaintiffs describe the following facts that occurred while they were students at Worthington Schools.
Additional facts were brought by the Defendants, but not referred to by the Plaintiffs in their Response. The Court, therefore, will only rely upon the facts as described by the Plaintiffs.
A. Incidents Alleged 1. Militia Boys
Damien testified that several students wore army fatigues, shaved their heads, pretended to be a part of a racist militia group and called themselves "skin heads." The boys, who have been identified as Jocy Greer and David Gross, called Damien and Darien racist names including "nigger." Jocy and David would also hit Darien and Damien and throw things at them. When told about the militia boys, Principal Turner told Damien and Darien to "turn the other cheek." Principal Turner further told the Plaintiffs, "a lot of people don't like [you] because [you're] black . . . once they get to understand, this would all change." Because of Joey and David, Damien and Darien did not take recess outside for approximately two months.Damien stated that initially he attended recess inside because it was safer, but the militia boys sought out Damien and Darien in the classroom and called them racist names. In response, Damien and Darien took recess in the library. Nonetheless, the militia boys would run into the library, shout racist slurs and then run out again.
The Defendants provided additional details. Damien testified that Joey and David would call names through the windows while Damien was working inside a classroom during recess. They would say, "Who is this nigger" This happened every day for eight weeks. When Damien would go to the bathroom and come back, his belongings would be "trashed." Damien reported the incidents to Principal Turner. Damien told the librarian and Principal Turner that the boys were calling him names.
In their Reply Memorandum, the Defendants added that a small group of boys wore fatigues and played army on the playground. The teachers advised Principal Turner that the kids wearing fatigues were separating themselves from other students. The Principal met with the students' parents before spring conferences and told them that army fatigues were not to be worn to school. At Oral Argument, Defendants conceded that neither the militia boys nor their parents were counseled about their alleged use of racial epithets.
In addition, on the last day of third grade, Darien was playing on the soccer field. Charles Greer grabbed Darien's jacket. Darien asked Charles to leave him alone; Charles took a swing, and Darien blocked it. Darien hit Charles three times, once in the stomach. Charles said "you stupid nigger" and hit Darien on the shoulder. Mrs. Orloski and Mrs. Hall walked up to the two boys after they had finished fighting. Darien states that the teachers called him out of class and told him that he was not supposed to be fighting, but did not punish him.
2. Russell Nolting: Book Bag Incident
Damien also suffered harassment during his fifth-grade year, 1997-98. Russell Nolting hit Damien's back repeatedly with his book bag and called him "blackie" while Damien was standing in line to go to class. Damien did not hit Russell. Both students were called into Principal Turner's office. Following the meeting, Principal Turner wrote a disciplinary report stating that Damien had threatened to punch Russell in the face. The next day, Damien and his mother met with the Principal. The reference to Damien was deleted, but Russell was not disciplined.
In the Defendants' Reply Memorandum, the Defendants state that Russell, Steve Franchim and Damien were involved in the incident. Damien was hit with a book bag that the other boys were throwing at each other. Damien verbally threatened Russell. All of the boys were called into the Principal's office. The Defendants contend that Russell was disciplined, and that the boys' parents were notified. Ms. Stannn, the school counselor, worked with all of the boys following the incident.
3. Ryan Blessing
While on the school bus, Ryan Blessing told Darien to "shut up." Darien refused to be quiet, so Ryan slapped him. Damien told the bus driver, James Reiling, who told Damien to sit down. Damien asked Ryan why he slapped Darien. Ryan responded that he could slap whomever he wanted, slapped Damien and called him a "nigger." Damien hit Ryan. The bus driver stopped the bus, walked to the back of the bus and told Damien that he was going to be written up for hitting Ryan. Damien was disciplined, and the Defendants state that Ryan received a three-day suspension.
4. Jeremy Hardin
Damien and Darien were both outside for recess. Darien was on the playground for smaller children when Damien heard his brother screaming and crying. Darien saw that a larger boy was holding down Darien and heard the larger boy calling Darien a "nigger." Darien had a hole in his jeans. Damien discovered by talking to another child that the bigger boy, Jeremy Hardin ("JJ"), pushed Darien down and told him, "no niggers on the big toy." Damien asked JJ if he said this. JJ told Damien that he would "push him and his nigger brother down anytime he wanted." JJ then pushed Damien, and Damien pushed him back. JJ punched Damien, and Damien hit him back. The teacher who was on the playground, Ms. Sanford, grabbed Damien, stuck her nails deeply into his arm, breaking the skin, and flung him against the fence.
Damien's memory of this event differs slightly from Damien's. Darien testified that JJ pushed Damien, but did not hit him. According to Darien, Damien hit JJ six times "at the most."
The incident was reported to Principal Turner, who told Damien that he should have "turned the other cheek." Principal Turner also screamed at Damien and issued a one-day in-school suspension for hitting a younger boy. Damien sat in the office during his suspension, and Mr. Adams brought him class work. According to Damien, Principal Turner said that JJ did not do anything wrong.
Darien said that the next day, Principal Turner announced over the PA system that "there should be no N word calling people on the playground or in the school, and shouldn't say anything about anybody's race, because everybody is different, and stuff like that."
In their Reply Memorandum, the Defendants state JJ was punished by contacting his parents, but as this was Damien's second "hitting incident," he spent a half day working with Ms. Turner and completing a responsibility plan. Darien was not written up for the incident.
5. Steve Francini
Mrs. Payne testified that Steve Francini called Damien "nigger" and other racial names while in Thomas Adams's class. Mrs. Payne visited Mr. Adams to complain about name-calling. Mr. Adams told her that he was reporting the conduct to Principal Turner.
In music class, Steve and Aileen Ranshaw made racial remarks. Steve said "I am not singing any African slave songs with no niggers." Damien told Ms. Rose, who did not do anything. Damien also told Mr. Adams, who said he would tell Principal Turner. The Plaintiffs learned later that Steve received counseling.
After Darnien reported to Ms. Rose Steve's African slave song comment, Ms. Rose told Damien to sit down. When he returned, Eileen Ranshaw said, "all black, bald people are elephants." Damien told Ms. Rose and she told him to sit down. Damien reported the incident to Mr. Adams, who said as soon as the Principal returned to the school, he would tell her. Mr. Adams told the students the next day that he had told Ms. Turner what happened. Damien does not know how Principal Turner handled the incident.
In their Reply Memorandum, the Defendants state that the matter was investigated by the school counselor, Ms. Stamm, and that Mr. Adams and Ms. Turner also became involved. Steve had three counseling sessions with Ms. Stamm. Principal Turner and Mr. Adams talked to the class about it.
6. John Mayton
During a basketball game, John Mayton pushed Damien down four to five times, and Damien kept getting up off the floor. Damien asked John why he pushed him. John told him to "shut up" Damien told John to "shut up" and began to walk away from him. John ran up behind Damien, tackled him and grabbed him round the throat. The teacher who was standing by did nothing until Damien hit John.
The Defendants add that Damien was playing basketball at Worthington Estates Elementary School and Damien asked John why he pushed him down during the game. John told Damien to "shut up." Damien told John to "shut up." The boys continued to tell each other to "shut up." John picked Damien up by the throat and held him in the air until Danilen hit him. The teacher came over, grabbed Damien by the wrist and pushed him aside. The teacher took the boys inside and told Damien that he had no right to hit John, and that he should have told the teachers. Ms. Sanford was the teacher on the playground, and Damien did not tell her that he was being pushed. Damien hit John more than three times during the incident, and John was bleeding from his nose and lip. Damien received a day-and-a-half suspension; John received a one-day suspension.
In their Reply Memorandum, the Defendants provide the following additional facts. John and Damien were playing basketball with six other students and Damien punched John. The fight was broken up by a playground teacher and each student received a one-and-a-half-day suspension for fighting. John had a bitten finger, a bump on his head and a bloody lip, while Damien had a few scratches on his elbows.
7. Food Poisoning
Damien began to experience severe stomach pain from the fall of 1997, until January of 1998. Damien noticed that one of the cafeteria workers would sprinkle a white substance on his food before giving him his tray at lunch. The cafeteria worker said that it was salt. In addition to his severe stomach pain, Damien had to go to the bathroom several times a day; he was also vomiting and spitting up blood. Damien felt that every time he ate something, he had to go to the bathroom and could barely drink water. Damien says that the pain stopped when he stopped eating cafeteria food. Damien told Principal Turner about the alleged poisoning and she said she would handle it. According to Damien, Rainbow Babies and Children of Cleveland believed that he had been poisoned. Mrs. Payne asked that a toxicology screen be conducted, but Principal Turner refused.
Defendants add the following additional facts. When Damien was in the fifth grade, he saw one of the lunch ladies sprinkle "white stuff' on his food. Damien alleges that when he ate his food he got sick and that it got worse throughout the year. Damien states that the cafeteria worker sprinkled something on his food six or seven times in January. After the first incident, while he was on the playground, he threw up. Damien went home, but did not tell his mother about the cafeteria worker. He also went to Children's Hospital but did not tell anyone that someone put something in his food. Two to three weeks later, the woman sprinkled something in his food. The Woman said it was salt. Damien got sick when he went home. He went to Children's Hospital but did not tell them that someone put something in his food. The next time he got sick, he did not see anyone put anything in his food. Damien went to St. Ann's and told the doctors that he thought he was being poisoned. The next time that Damien got sick was when he saw a woman pour dressing on his salad. Damien went to class and had to use the bathroom immediately. Damien's stomach problems continued until late July of 1998.
8. Daniel Black
Damien and several of his classmates were playing basketball at Slatehill Elementary School, where Damien attended in 1998. During the game, Damien reached down to pick up a basketball, was kicked in the face by Daniel Black, and his glasses were broken. Damien went to Principal Wene about the incident. The next day, Daniel admitted that he kicked Damien and apologized. Principal Wene told Mrs. Payne that Daniel's parents agreed to pay for the glasses. The next day, Damien found out that Daniel's parents would not pay for the glasses. Daniel was not disciplined.
9. Nathan Whitman
The incident began with Damien and Nathaniel Whitman yelling at each other to "shut up" on the school bus. When the bus stopped at the Paynes' but stop, Nathan Whitman took a swing at Damien, but missed. Damien hit Nathan three to four times in the stomach and shoulders. The next day, Nathan and his mother came over to apologize. Damien was not disciplined.
The Defendants add that Mr. Rehling, the bus driver, broke up the fight between Nathan and Damien on the bus. When the boys got off of the bus, they continued to fight. The police came over and the fight ended. No one was written up, and no one was disciplined.
III. 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 there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FED. R. Cxv. P. 56(c). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the non-moving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Barnhart v. Pickrel, Schaeffer Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir. 1993). The non-moving party must then present "significant probative evidence" to show that "there is [more than] some metaphysical doubt as to the material facts:" Moore v. Philp Morris Cos., 8 F.3d 335, 340 (6th Cir. 1993) (citation omitted). "[S]ummary judgment will not lie if the dispute is about a material fact that is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.s. 574, 587 (1986) (finding summary judgment appropriate when the evidence could not lead a trier of fact to find for the non-moving party).
In evaluating a motion for summary judgment the evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). In responding to a motion for summary judgment, however, the non-moving party "may not rest upon its mere allegations . . . but . . . must set forth specific facts showing that there is a genuine issue for trial." FED. R. Civ. P. 56(e); see also Celotex, 477 U.S. at 324; Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994). Furthermore, the existence of a mere scintilla of evidence in support of the non-moving party's position will not be sufficient; there must be evidence on which the jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 251; see also Copeland v. Maclinus, 57 F.3d 476, 479 (6th Cir. 1995).
IV. ANALYSIS
The Defendants in this matter are Worthington Schools ("School"), Worthington Board of Education ("Board"), and, in their individual capacities, Superintendent Damon Asbury and Principal of Worthington Estates Elementary School, Lenn Turner. Plaintiffs allege violations of their rights under the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment to the Constitution of the United States and state law claims of intentional infliction of emotional distress. They request compensatory and punitive damages.
The Plaintiffs have sued to vindicate their constitutional rights under 42 U.S.C. § 1983. Section 1983 provides, in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .42 U.S.C. § 1983. Municipalities, such as the School and the Board, are "persons" subject to suit under § 1983. Hansen v. Western City Sch. Dist., No. 93-3231, 1994 U.S. App. LEXIS 31576, at *25 (6th Cir. Nov. 7, 1994).
A. Equal Protection Clause
The Plaintiffs' first claims are for racial harassment and discrimination under the Equal Protection Clause of the Fourteenth Amendment In deciding the Defendants' Motion, the Court will first determine whether the Plaintiffs have stated a claim for race discrimination and/or racial harassment. After doing so, the Court will examine whether the Board and/or the School are entitled to summary judgment, and then finally will examine whether the individually-named Defendants are entitled to summary judgment on these claims.
1. Race Discrimination
The Equal Protection Clause provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1. To establish a claim of race discrimination under the Equal Protection Clause, the Plaintiffs must demonstrate that they were treated differently than non-minority students. Soper v. Hoben, 195 F.3d 845, 852 (6th Cir. 1999). To avoid liability, the Defendants must demonstrate either that they did not discriminate against the Plaintiffs, or that their conduct satisfied strict scrutiny. Nabozny v. Podlesny, 92 F.3d 446, 454 (7th Cir. 1996). The Seventh Circuit articulated the standard by which to judge an equal protection claim:
The gravamen of equal protection lies not in the fact of deprivation of a right but in the invidious classification of persons aggrieved by the state's action. A plaintiff must demonstrate intentional or purposeful discrimination to show an equal protection violation. Discriminatory purpose, however, implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker singled out a particular group for disparate treatment and selected this course of action at least in part for the purpose of causing it adverse effects on the identifiable group.Id.. (citations omitted).
The Plaintiffs' race discrimination claim relies on the assertion that they were disciplined more harshly for the same conduct than their non-minority counterparts. There are eight incidents that this Court must examine to determine whether the Plaintiffs received disparate discipline based on race: (1) the militia boys; (2) Russell Nolting-book bag; (3) Ryan Blessing; (4) JJ Hardin; (5) Steve Francini; (6) John Mayton; (7) Daniel Black and (8) Nathan Whitman.
The Court finds that the Plaintiffs have not stated how or why the food poisoning incident states a claim for a violation of the Equal Protection Clause. These facts, therefore, will not be considered by the Court.
The Plaintiffs alleged that the militia boys would taunt them while they were taking their recess in either a classroom or the library, that they informed Principal Turner, but that they do not know whether the students were disciplined for the racial comments and conduct. As for Darien's incident with Charles Greer, Darien was not disciplined, so there can be no claim of disparate discipline based simply on the fight. Charles racist comment, however, was not subject to discipline.
The incident with Russell Nolting, viewing the facts in a light most favorable tothe Plaintiffs, is as follows. Damien was given a disciplinary report for threatening to punch Russell in the face, while Russell was not disciplined for hitting Damien in the back with his book bag and calling him "blackie." The "blackie" comment was not noted in the School's disciplinary records. But, contrary to the Plaintiffs' assertion, all of the boys, including Russell, were disciplined for throwing book bags.
The third incident was with Ryan Blessing. After a shouting match, with Ryan calling Damien "nigger," Damien hit Ryan. Damien alleges that he was disciplined, but that Ryan was not. The School's records reflect that Ryan received a three-day suspension, but do not reflect the racial epithet.
The fourth incident involved JJ Hardin. After JJ told Darien "no niggers on the big toy, " and held down Darien and punched him, Damien came over to protect his brother. A pushing match ensued, and Damien hit JJ. Damien was given a one-day, in-school suspension. At Oral Argument, the Defendants stated that JJ's discipline was a phone call to his parents. The Court notes that, although JJ's racial slur is not referenced in the School's disciplinary records, Damien and Darien testified that they heard it, and more important, that racial name calling was addressed by Principal Turner the next day over the PA. Viewing the facts in the light most favorable to the Plaintiffs, there is evidence that racial comments were neither officially recorded, nor disciplined by the School.
As for the incident with Steve Francini, Steve called Damien a "nigger" and other racist names during Mr. Adams's class. When the students were singing African spiritual songs, Steve said, "I am not singing any African slave songs with no "N" words." The Plaintiffs learned that Steve received counseling for the incident. Considering the conflicting factual assertions by the parties with regards to this incident, the Court questions why, according to School records, Steve was sent to counseling merely for saying "I don't want to sing the stupid song." Again, no racial comments were noted in the School's records.
The next incident involved John Mayton and a pushing match during a basketball game. John supposedly tackled Damien, and Damien hit John. John was bleeding from his nose and lip. Damien received a one-day-and-a-half suspension; John, a one-day suspension. No racial comments were alleged.
The incident with Daniel Black involved another basketball game, this time at Slatehill Elementary. When Damien reached down to pick up a basketball, Daniel kicked him in the face and broke his glasses. Daniel apologized for the incident and was not disciplined.
The final incident involved Nathan Whitman. Nathan and Damien were yelling "shut up" at each other on the bus. Nathan's swing at Damien missed, and Damien responded with three to four punches to the stomach and shoulders. Damien was written up but not disciplined.
Of all of these incidents, two at most show disparate discipline. As a threshold matter, since the School has a policy of punishing racial harassment, School's failure to take any action against the militia boys can be viewed as disparate discipline, Nabozny, 92 F.3d at 454, especially since the record is replete with evidence of the school punishing other misconduct. At Oral Argument, the Plaintiffs stated that Damien told Principal Turner that he was being harassed by the boys on an ongoing basis, to the extent that Plaintiffs took recess in their classrooms and later in the library. The Defendants state that Principal Turner was not aware of the incident.
The School Handbook provides:
Harassment and Intimidation or Other Degrading. Disgraceful. Discriminating and/or Racist Acts. A student shall not harass, intimidate, degrade, disgrace, disparage, incite, provoke, threaten, or discriminate against any other student or school employee or otherwise disrupt the school environment. For this purpose, harassment or intimidation includes, but is not limited to: slurs; profanity; written information; denigrating remarks or actions; obscene gestures; the wearing or display of insignia, signs, buttons, clothing, or apparel; or other verbal, nonverbal, or physical conduct including, but not limited to, those based on race, color, national origin, ancestry, citizenship, religion, sexual orientation, handicap, age, or sex that are harassment as defined in Board of Education Policy and Regulation 10-0603.12 "Prohibition of Harassment" or that have the purpose or effect of (i) causing or intending to cause any other student or school employee to be reasonably placed in fear of his or her personal safety; (ii) causing or intending to cause a hostile, intimidating, or offensive education environment for any other student or school employee; (iii) causing or intending to cause material disruption of the educational process; (iv) unreasonably interfering with a student's curricular, co-cunicular, or extra-curricular performance; or (v) otherwise adversely and unreasonably impacting upon a student's educational opportunities.
At least, a genuine issue of material fact remains with respect to this incident.
The second discriminatory incident involved JJ Hardin. After JJ told Darien "no niggers on the big toy," and held him on the ground, Damien came over to protect his brother. A pushing match ensued and Damien ended up hitting JJ. Damien was given a one-day, in-school suspension. JJ's punishment is unclear, but Damien says that the Principal told him that JJ did not do anything wrong. At Oral Argument, the Defendants stated that JJs parents were called, and that was his discipline. The Court finds disparate Dantien's discipline as compared to JJ's.
The Court, therefore, concludes that the Plaintiffs have demonstrated a Equal Protection Clause violation for disparate discipline based on both the militia boys incidents and the JJ Hardin incident.
Furthermore, disparate treatment is evinced in that none of the incidents that the Plaintiffs stated involved racial slurs resulted in either a reference of such in the School's records or discipline for the students who uttered the slurs. The incidents involved were: the militia boys, Gharles Greer, Russell Nolting, Ryan Blessing, JJ Hardin and Steve Francini. Tellingly, the school disciplined certain conduct — including fights and non-racial name calling — but failed even to note the racial epithets in the School's records. The Court finds the noticeable absence of any reference to the alleged racial slurs to be evidence of disparate treatment and/or discipline sufficient to state a claim under the Equal Protection Clause.
Again, the School had a policy against harassment. See supra note 6.
Accordingly, the Court concludes that the Plaintiffs have stated a claim of race discrimination premised on the disparate discipline of students based on the student's race, and on the student's conduct, to wit: whether the student's conduct included a racial slur.
2. Student-on-Student Racial Harassment
The Plaintiffs have also brought a claim for student-on-student racial harassment under the Equal Protection Clause. The Defendants contend that the Plaintiffs have not demonstrated that allegations of harassment or discrimination went unpunished. The Plaintiffs respond that had Defendants Asbury and/or Turner investigated the initial incidents of racial harassment, the students would have been deterred from engaging in future misconduct, especially with respect to the militia boys. Plaintiffs argue that Defendant Asbury knowingly acquiesced in the unconstitutional conduct of Defendant Turner.
Because the alleged student harassers are not Defendants in this case, Plaintiffs do not state a claim against them. Any claim the Plaintiffs have brought for student-on-student racial harassment hinges upon whether the School and/or Board may be held liable for the acts of the students.
3. Board and School a. Custom or Policy
The Court will first examine whether the School and/or the Board should be granted summary judgment on the Plaintiffs' equal protection claims. A municipality, such as the School and the Board, may be held liable for a violation of § 1983 upon a showing by the plaintiff that his injury was caused by either an unconstitutional policy or custom that was maintained with deliberate indifference to the policy's or custom's consequences. Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986). The entity must be the "moving force" behind the violation. Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403-04 (1997), and there must be a nexus between the alleged deprivation and the municipality's action. Id.. at 408-09. As the Sixth Circuit has interpreted this requirement, the Board and/or the School must have "caused" the constitutional deprivation, and the plaintiffs must show a "direct causal link between the custom and the constitutional deprivation; that is, `show that the particular injury was incurred because of the execution of that policy.'" Doe v. Claiborne County, 103 F.3d 495 (6th Cir. 1996) (citation omitted). The municipality may not be held liable under a theory of respondeat superior, since liability may not be imposed on the governmental entity for the acts of its employees. Monell v. Department of Soc. Servs., 436 U.S. 658, 692 (1978).
"Custom" and "policy" have been defined by case law. A "custom" is an unofficial practice that has the force of law. Board of County Comm'n of Bryan County, 520 U.S. at 404, or defined another way, it is a "`legal institution' not memorialized by written law." Doe v. Claiborne County, 103 F.3d at 508. "Policy" has been defined as "formal rules of understanding — often but not always committed to writing — that are intended to, an do, establish fixed plans of action to be followed under similar circumstances consistently and over time." Pembaur, 475 U.S. at 480-81.
The Plaintiffs must also demonstrate that the Defendants' custom or policy was a response that could be labeled as deliberately indifferent. Cant v. Wallingford Ed. of Educ., 195 F.3d 134, 140 (2d Cir. 1999); Murrell v. School Dist. No. 1, 186 F.3d 1238, 1250 (10th Cir. 1999); Sargi v. Kent City Ed. of Educ., 70 F.3d 907, 911-12 (6th Cir. 1995). To be said to have acted with deliberate indifference, the defendant's conduct must be "clearly unreasonable in light of the known circumstances." Gant, 195 F.3d at 141. The defendant's response must be "such that the defendant intended the discrimination to occur." Id.. Deliberate indifference has also been described as the "defendants actually know[ing] of and acquiesc[ing]" in the harasser's conduct. Murrell, 186 F.3d at 1250. The Sixth Circuit has explicitly stated that deliberate indifference requires something more than merely a showing of "a negligent failure to recognize [a] high risk of harm." Sargi 70 F.3d at 912 (internal quotations omitted).
i. Disparate Discipline
The Plaintiffs' claim of disparate discipline is based on the assertion that the Defendants acted in a disparate manner when comparing the discipline of non-minority students with that of African-American students, especially the discipline of the Plaintiffs. As for the existence of a custom of disciplining African-American students more harshly than non-minority students, the Plaintiffs must demonstrate the existence of an unofficial practice that carries the force of law. Board of County Comm'n of Bryan County, 520 U.S. at 404. Under two related lines of analysis, the Court finds that the Plaintiffs have made such a showing.
Both parties agree that the School's official policy prohibited all forms of harassment. See supra note 6.
Under the first line of analysis, relating to the discipline meted out by the School, the Court finds that discipline was disparate along racial lines. That is, the student actors themselves were treated differently. Viewing the facts in the light most favorable to the Plaintiffs, JJ Hardin was not given the same degree of discipline as Damien for the same conduct — fighting on the playground. With respect to the militia boys, despite Damien telling Principal Turner about the conduct of the boys, no discipline was handed out by the Defendants.
Further, under a second line of analysis, relating to the School's custom of not documenting incidents of verbal racial harassment, again the Court finds disparate treatment. Here, the conduct was disparately disciplined. The evidence demonstrates that the School established a custom of not placing instances of racial harassment in the School's records, and of not disciplining such harassment. Racial harassment went virtually unreported and unpunished.
The requisite nexus is present, in as much as there exists a direct link between the constitutional deprivation and the disparate discipline. Because African-American students were treated more harshly than non-minority students, and because racial harassment was neither noted nor disciplined, the Plaintiffs suffered a deprivation of their right to equal protection of the law. The custom can be viewed as deliberately indifferent, as the Plaintiffs allege that the Defendants knew of the racial comments, yet did nothing about them. The Defendants' Motion for Summary Judgment against Worthington Schools and Board of Education, with respect to the claims of disparate discipline under the Equal Protection Clause, is therefore DENIED.
ii. Racial Harassment
The Plaintiffs have pled a "failure to act" claim with regards to racial harassment. A failure to act requires the showing of:
(1) the existence of a clear and persistent pattern of abuse . . .; (2) notice or constructive notice on the part of the School Board; (3) the School Board's tacit approval of the unconstitutional conduct, such that their deliberate indifference in their failure to act can be said to amount to an official policy of inaction; and (4) that the School Board's custom was the "moving force" or direct causal link in the constitutional deprivation.Doe v. Claiborne, 103 F.3d at 508. In a failure to act claim, the "evidence must show that the need to act is so obvious that the School Board's `conscious' decision not to act can be said to amount to a `policy' of deliberate indifference to [the plaintiffs] constitutional rights." Id.. The Doe court defined deliberate indifference as "evidence showing an obvious, deliberate indifference," and not "a collection of sloppy, or even reckless, oversights . . . ." Id In a deciding a motion for summary judgment, under the third element, the court must determine whether a custom or policy existed; then, if a genuine issue of material fact exists with respect to this element, whether the Defendants acted with deliberate indifference is a question left for the jury to decide. Id at 509.
The Court finds that the first element has been met because, viewing the facts in the light most favorable to the Plaintiffs, there was a clear and consistent pattern of abuse perpetrated by fellow students. As for the second element, there was notice to the School, through Principal Turner, and there exists a genuine issue of material fact as to whether the Board was on notice. As for the third prong, this Court has already found that a custom of not punishing racial harassment did exist; therefore, deliberate indifference is a question of fact for the jury to decide. The final element, that the School and/or the Board's custom was the "moving force" or direct causal link in the constitutional deprivation, has also been met by the Plaintiffs. The Plaintiffs have adduced evidence sufficient to show that the School and Board's custom of not disciplining students who racially harassed others created an atmosphere which allowed the students to harass the Plaintiffs. The School and Board's custom of inaction was the impetus for the harassers to act. The Plaintiffs have demonstrated that the offending students knew, by custom and practice, that they would not be punished for racial harassment, and therefore, racially harassed Damien and Darien.
The Court, concludes that liability can be imposed on both Worthington Schools and Board of Education for the Plaintiffs' claim of racial harassment brought under the Equal Protection Clause of the Fourteenth Amendment. Summary Judgment is, accordingly, DENIED to both Defendants on this claim.
b. Failure to Train
The Plaintiffs next rely upon a failure to train claim as a basis for the School's and/or the Board's liability with respect to their claim of racial harassment. The Plaintiffs argue that Worthington Schools, Worthington Board of Education and Dr. Asbury had a duty to train the District's administrators and teachers in the appropriate procedures with regard to racial harassment. Using the failure to train as a basis of liability requires a showing that the "failure to train constitutes deliberate indifference to the rights of those students . . . ." Sargi, 70 F.3d at 912; see also Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir. 1996) (finding that a failure to train claim arises if the plaintiff proves that the "failure to train its employees in a relevant respect evidences a "deliberate indifference' to the rights of the students.") (citation omitted). Citing City of Canton v. Harris, 489 U.S. 378 (1989), the Sixth Circuit found in a school setting that to demonstrate "liability required a showing that an entire training program was defective; showing that an individual . . . was unsatisfactorily trained `will not alone suffice to fasten liability on the city, for the [individual's] shortcomings may have resulted from factors other than a faulty training program.'" Seay v. Seaton, 900 F.2d 260 (6th Cir. 1990) (quoting Canton, 489 U.S. at 390-91). The Seay court emphasized that "permitting § 1983 liability for failure to train in every case in which the plaintiff can point to something the defendant "could have done' to prevent the unfortunate incident would result in de facto respondeat superior liability, a result rejected . . . Id.. at 260.
The Court finds that the Plaintiffs have not established a failure to train claim. The Plaintiffs argue that because Principal Turner did not know that "nigger" was a derogatory term, she was not trained properly by the School and/or the Board. The Plaintiffs, however, cannot base their failure to train claim on the results of the training rather than on the training's content. According to the court in Seay, the Plaintiffs had to have shown that the training itself was defective. Demonstrating that the training did not provide one individual with minimal knowledge does not establish that the School or the Board should be held liable for a failure to train. Summary Judgment is therefore GRANTED to the School and the Board on the Plaintiffs' racial harassment claim based on a failure to train.
4. Individually-Named Defendants
Principal Turner and Superintendent Asbury have been sued only in their individual capacities. The Court will next turn to the question of whether Defendants Turner and Asbury may be held responsible for disparately disciplining the Plaintiffs, or for the racial harassment perpetrated by the students. In Kentucky v. Graham, 473 U.S. 159 (1985), the Court found that to establish individual liability, the plaintiff must demonstrate "that the official, acting under color of state law, cause the deprivation of a federal right" Id.. at 166.
a. Individual Defendants — Disparate Discipline
According to the Plaintiffs, Ms. Turner engaged in disparate discipline. Mrs. Payne reported all of Principal Turner's actions to Defendant Asbury, but he did not investigate her misconduct The Court has already examined each instance pled by the Plaintiffs and concluded that the Plaintiffs have stated a claim for disparate discipline. The Court must next determine whether Defendant Turner in her individual capacity "caused the deprivation of federal right."
See supra Part IiV.A. 1.
Since Defendant Asbury cannot be held under a theory of respondeat superior, Doe v. Claiborne, 103 F.3d at 511, the Plaintiffs "`must show that [he, as] a supervisory official[,] at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate."' Id.. (quoting Bellamy v. Bradley, 729 F.2d 416 (6th Cir. 1984)).
Based on the militia boys and JJ Hardin incidents, Principal Turner engaged in disparate discipline. Likewise, based on the fact that racial harassment was not documented, and consequently not disciplined, Principal Turner also engaged in disparate discipline of racial harassment. The Plaintiffs have also sufficiently alleged that Superintendent Asbury was made aware of the fights, the racial comments and the subsequent discipline (or lack thereof), but did nothing to correct the situation, thereby acquiescing in the conduct by giving his tacit approval. Summary judgment is therefore DENIED to Defendant Asbury in his individual capacity on a claim of disparate discipline, and DENIED as to Defendant Turner.
At Oral Argument, the Plaintiffs attempted to state a claim against Defendant Asbury on a failure to train theory. This Court GRANTS summary judgment to the Defendants on the claim for the same reasons as stated in Part IV.A.3.b. Furthermore, as Defendant Asbury only has been sued in his individual capacity, the Plaintiffs' failure to train theory would amount to nothing more than an official capacity claim.
b. Individual Defendants — Racial Harassment
In Murrell v. School Dist No. 1, 186 F.3d 1238 (10th Cir. 1999), the court found that a "governmental official" may be held individually liable for a claim brought pursuant to § 1983 "upon a showing of deliberate indifference to known [racial] harassment." Id.. at 1250; see also Gant v. Wallingford Educ., 195 F.3d 134, 140 (2d Cir. 1999). In such a case, the plaintiff must show that the individually-named defendant ""actually knew of and acquiesced in"' the harasser's conduct. Murrell, 186 F.3d at 1250 (quoting Jojola v. Chavez, 55 F.3d 488, 490 (10th Cir. 1995)).As for Principal Turner, Defendants argue that she responded to complaints, including addressing the name calling over the PA, and suspended students who were involved in the incidents. The Plaintiffs respond that Principal Turner failed to discipline these boys on the prior occasions of aggressive conduct so as to deter future misconduct.
There exists a genuine issue of material fact as to whether Principal Turner knew of the racial harassment that was alleged to have been perpetrated by the militia boys, Greer, Nolting, Blessing, Hardin and Francini. The Plaintiff stated that it did occur, and that they reported it to the Principal; however, the School's records do not reflect any of the comments being made. Viewing the facts in the light most favorable to the Plaintiffs, the Court must accept that the racial comments were made and reported. A reasonable fact finder could conclude that failure to punish racial harassment was deliberately indifferent. Based on the genuine issue of material fact that is present in this claim, summary judgment is DENIED to Principal Turner in her individual capacity. As the Plaintiffs provided an affidavit stating that they informed Dr. Asbury of the racial harassment, and he did nothing in response, thereby acquiescing in the conduct of Principal Turner, summary judgment is also DENIED to Dr. Asbury.
B. Substantive Due Process
The Due Process Clause of the Fourteenth Amendment provides that "no State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV. There are two types of substantive due process claims: "deprivation of a particular constitutional guarantee . . . or (2) actions that `shock the conscience.'" Braley v. City of Pontiac, 906 F.2d 220, 224; (6th Cir. 1990). Both parties have argued this case as the former: deprivation of a particular constitutional guarantee.
Shocks the conscience," in terms of the substantive due process clause, has been defined as "the right to be free from state intrusions into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience" of the trier of fact Lillard v. Shelby County Ed. of Educ., 76 F.3d 716, 725 (6th Cir. 1996)
Essentially, the Plaintiffs have argued that, by virtue of compulsory attendance laws, there existed a duty to protect the Plaintiffs from harm. The Due Process Clause "protects the right against "unjustified intrusions on personal security' at the hands of the State," Soper v. Hoben, 195 F.3d 845, 852 (6th Cir. 1999) (quoting Ingraham v. Wright, 430 U.S. 651, 673 (1977)). In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1988), the Supreme Court concluded that a governmental entity's duty to protect an individual from the acts of private persons extends only if there is a "special relationship" between the parties. Id.. at 190-91. A "special relationship" exists if: "the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs." let at 200. The Sixth Circuit has found that compulsory attendance laws do not establish a duty on behalf of schools to protect students from harm perpetrated by other students. Doe v. Claiborne County, 103 F.3d at 510; Sargi, 70 F.3d at 911. The Sargi court concluded: "Despite mandatory school attendance laws, the parents, not the state, remain the child's primary caretaker." 70 F.3d at 911.
Based upon these well-settled principles, the Court GRANTS summary judgment to the Defendants, since the Plaintiffs have not pled that either Worthington School or Board established a special relationship the Plaintiffs that would give rise to a duty to protect them.
As this Court has found that no constitutional deprivation has occurred with respect to the Plaintiffs' substantive due process rights, summary judgment is also GRANTED to the individually-named Defendants.
C. Procedural Due Process
For a procedural due process claim under the Fourteenth Amendment the Plaintiffs first must establish the existence of a liberty or property interest that was deprived by the defendant. Board of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 82 (1978). For a constitutionally-protected property interest to exist, "a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
As for their procedural due process claim, the Plaintiffs argue that their rights were violated when the Defendants did not use complaint and investigation procedures established by Title VI and the State of Ohio Department of Education Office of Civil Rights.
Contrary to the Plaintiffs' assertion, they have not stated a claim for violation of the Procedural Due Process Clause. A procedural due process claim only arises when an individual possesses either a property or liberty interest that has been taken away without adequate procedural protections. Here, the Plaintiffs have failed to demonstrate which right they were deprived of i.e., life, liberty or property, without due process of law. The due process claim is derived, not from a failure to follow a statute; rather, the claim must be derived from a failure to follow established constitutional procedures either prior to or following a deprivation of an interest in life, liberty or property. Thus, the Plaintiffs' reliance on Title VI and the rules of Ohio's Department of Education as the predicates for due process protection is unavailing. The Court GRANTS summary judgment to all of the Defendants on the Plaintiffs' procedural due process claim.
As the Defendants have been granted summary judgment on the Plaintiffs' substantive due process claim, an alleged deprivation of liberty cannot be the basis for their procedural due process claim.
Here, the Plaintiffs at most have pled a statutory or administrative violation. Their sole argument on this claim is a single sentence "the Plaintiffs procedural due process rights were abridged where Defendants failed to utilize complaint and investigation procedures mandated by Title VI and the State of Ohio, Department of Education of Civil Rights."
D. Retaliation
The second claim for relief was based on the assertion that the Defendants took retaliatory actions against the Plaintiffs. The Defendants argues that for the claim of retaliation, the Plaintiffs have not demonstrated that they engaged in constitutionally protected conduct, or that the protected conduct was a substantial or motivating factor in the alleged retaliation.
The Plaintiff did not respond to this claim in their Motion. Federal Rule of Civil Procedure 56(e) provides: "[W]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pledings . . . the adverse party's response . . . must set forth specific facts showing that there is a genuine issue for trial." FED. R. Civ. P. 56(c). The Sixth Circuit, interpreting Rule 56, has found, "[w]here the movant brings forward and supports his motion for summary judgment his opponent may not rest merely upon his pleadings but rather must come forward to show genuine issues of fact." Bryant v. Kentucky, 490 F.2d 1273, 1275 (6th Cir. 1974); see also Gerber v. Silver Recovery Sys., 729 F.2d 1461 (6th Cir. 1984); Spells v. Cuyahoga Cmty. Colt, 889 F. Supp. 1023, 1026 (N.D. Ohio 1994).
At Oral Argument, the Plaintiffs stated that the retaliatory conduct was teachers "acting boorishly towards the plaintiffs," "differential grading" and "busing issues." The Court concludes that these unsubstantiated allegations do not state a claim for retaliation.
Here, the Plaintiffs have merely rested on their pleadings as the basis for their claim of retaliation and have offered no evidence in support thereof Thus, summary judgment is GRANTED to the Defendants on this issue.
E. Emotional Distress
The Plaintiffs' First Amended Complaint states that they suffered emotional distress as a direct and proximate result of the Defendants' actions. The Defendants argue that the Plaintiffs' claims for emotional distress are barred by Ohio Revised Code section 2744.01, the political subdivision immunity standard.
Ohio Revised Code section 2744.03(A)(6) provides:
[An] employee is immune from liability unless one of the following applies:
(a) The employee's acts or omissions were manifestly outside the scope of the employee's employment or official responsibilities; (I, ) The employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; (c) Liability is expressly imposed upon the employee by a section of the Revised Code. Liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon an employee, because of a general authorization in that section that an employee may sue and be sued, or because the section uses the term "shall' in a provision pertaining to an employee.
OHIO REV. CODE § 2744.03(6)(a)-(c) (emphasis added). The Ohio State Supreme Court in Fabrey v. McDonald Village Police Department, 639 N.E.2d 31 (Ohio 1994), commenting on section 2744 found:
In Haverlack, we recognized that the doctrine of sovereign immunity was a creature of common law, and thus an appropriate subject also for legislative action. The General Assembly in enacting R.C. Chapter 2744 has used that power to create a scheme for immunity and liability of political subdivisions. Because the General Assembly has the power to define the contours of the state's liability, within the constraints of equal protection and due process, the right to sue the state is not fundamental.Id.. at 34-35.
Immunity under 2744.03(A)(6) is qualified. E.J. v. Hamilton County, 707 F. Supp. 314, 318 (S.D. Ohio 1989); Potter v. City of Troy, 604 N.E.2d 828, 837 (Ohio Ct.App. 1992); Singer v. City of Fairborn, 598 N.E.2d 806, 814 (Ohio Ct.App. 1991). If one of the subsections is applicable, the employee is not shielded by immunity. Ouio REV. CODE § 2744.03(A)(6); Alley v. Bettencourt, 730 N.E.2d 1067, 1074-75 (Ohio Ct.App. 1999) (finding that under subsection 2744.03(A)(6) "[am officer cannot be held personally liable for acts committed while carrying out his duties unless one of the of exceptions applies."). Viewing the facts in the light most favorable to the Plaintiffs, this Court finds that subsection (b) is applicable in that the Defendants could be said to have acted recklessly. Hence, for purposes of the Defendants Motion for Summary Judgment, statutory immunity is not available as a defense.
Subsection (c) provides an additional basis to dissolve immunity, as established by the laws of the State of Ohio. Subsection (c) is not at issue in this case. OHIO REV. CODE 2744(A)(6)(c).
Absent statutory immunity, the Defendants argue that as for a claim of intentional infliction of emotional distress, the Plaintiffs have not demonstrated that they suffered severe emotional distress and not just embarrassment or hurt feelings. The Plaintiffs respond that they suffered depression and anxiety as a result of transferring from one school to another and as a result of their experiences at Worthington Estates.
The tort of intentional infliction of emotional distress is committed by "`[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.'" Yeager v. Local Union 20, 453 N.E.2d 666, 671 (Ohio 1983) (citation omitted). "Extreme and outrageous" conduct is defined as:
This Court finds that a claim of negligent infliction does not lie with the present set of facts as "Ohio courts have limited recovery for claims alleging negligent infliction of emotional distress to situations such as where the plaintiff was a bystander to an accident or was in fear of physical consequences to his own person." Gearing v. Nationwide Ins. Co., 665 N.E.2d 1115, 1120 (Ohio 1996).
[C]onduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" Id.. (citations omitted).
Viewing the facts in the light most favorable to the Plaintiffs, a reasonable jury could find that it was outrageous conduct to allow two children to be racially harassed while attending school. The question of whether the conduct was "severe" is a question of fact best left for the jury to determine. Summary Judgment is therefore DENIED on the claim of intentional infliction emotional distress.
F. Punitive Damages
The Defendants finally argue that the Plaintiffs' claim for punitive damages is barred by Ohio Revised Code section 2744.05(A). The Plaintiffs respond that persons sued in their individual capacities may be held liable for punitive damages.
Section 1983 permits the awarding of punitive damages, which is unencumbered by section 2744.05(A). See, e.g., Conley v. Shearer, 595 N.E.2d 862 (Ohio 1992) (finding that Ohio Revised. Code §§ 9.86 and 2743.02 do not apply to claims brought under § 1983). The Defendants argument, therefore, is of no moment and is rejected.
V. CONCLUSION
For the foregoing reasons, the Defendants' Motion for Summary Judgment is GRANTED in part, and DENIED in part. Specifically, the Defendants' Motion is GRANTED on the Plaintiffs' claims of retaliation, procedural due process and substantive due process but DENIED as to the Plaintiffs' equal protection claim, and the intentional infliction of emotional distress claims. Further, Plaintiffs claim for punitive damages is cognizable under 42 U.S.C. § 1983.
IT IS SO ORDERED.
.