P.K. HOLMES, III, Chief District Judge.
Before the Court are Defendants' motion to dismiss (Doc. 7) and brief in support (Doc. 8), Plaintiffs' response (Doc. 12) and brief in support (Doc. 13), and Defendants' reply (Doc. 15).
In their complaint, Plaintiffs Scott and Janelle Bollman allege the following facts: the Bollmans' minor child, L.B., has been enrolled as a student in the Greenwood School District ("the District") during the relevant time period. L.B. enrolled as a fifth-grader in 2007 and now attends high school. Throughout each year of L.B.'s enrollment in the District, L.B. has been subjected to frequent racial epithets, threats, and occasional physical violence from other students. L.B. and L.B.'s parents made frequent complaints about the harassment to school officials, complained to law enforcement about threats and physical violence directed toward L.B., and in 2012 filed a complaint with the Department of Education, Office of Civil Rights, which investigated and took no action. In 2013, L.B.'s parents notified Superintendent John Ciesla and members of the District's Board of Education of the harassment of L.B. and requested a meeting, but the request was denied. Multiple officers and employees of the District had actual knowledge of the harassment, but no action has been taken to end it. The indifference of the District to student-on-student harassment is not limited to its indifference to harassment of L.B. L.B. continues to face harassment based on race and national origin from other students in the District.
L.B.'s parents filed suit with the Court in January of 2014 on behalf of L.B. Plaintiffs are pursuing a Title VI action for unlawful discrimination under 42 U.S.C. § 2000d, a 42 U.S.C. § 1983 action for deprivation of Fourteenth and First Amendment rights, and an action under the Arkansas Civil Rights Act ("ACRA"), Ark. Code § 16-123-105(a), for deprivation of state civil rights. Plaintiffs' complaint names as Defendants the District and persons employed by, or on the Board of Education of, the District in both their individual and official capacities. In the instant motion, Defendants seek dismissal under Federal Rule of Civil Procedure 12(b)(6) of all claims alleged in Plaintiffs' complaint.
In ruling on a motion to dismiss, the Court must "`accept as true all facts pleaded by the non-moving party and grant all reasonable inferences from the pleadings in favor of the non-moving party.'" Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012) (quoting United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir. 2000)). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Those alleged facts must be specific enough "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain mere "labels and conclusions" or "a formulaic recitation of the elements of the cause of action will not do." Id. Where the facts alleged, taken as true, "raise a reasonable expectation that discovery will reveal evidence of illegal [activity]," the Court should deny a motion to dismiss. Id. at 556.
Defendants first argue that Plaintiffs' claims are barred by the three-year statute of limitations.
Here, Plaintiffs allege that Defendants retaliated in 2012 and 2013 against Plaintiffs' protected activity. Plaintiffs also allege that Defendants remained deliberately indifferent to harassment of L.B. beginning in 2007 and continuing over "each of the succeeding years." (Doc. 1, ¶ 6). The complaint was filed on January 2, 2014. The alleged retaliation was within the limitations period. Furthermore, Plaintiffs have alleged facts from which it can reasonably be inferred that by remaining deliberately indifferent to student-on-student harassment, Defendants are engaging in a continuing violation of L.B.'s rights. It is not clear from the face of the complaint that the limitations period has run on these acts. Accordingly, the Court will deny Defendants' motion to dismiss the federal claims on statute-of-limitations grounds.
Title VI prohibits intentional discrimination by grant recipients on the basis of race, color, or national origin in any program or activity receiving financial assistance from the federal government. 42 U.S.C. § 2000d; Mumid v. Abraham Lincoln High Sch., 618 F.3d 789, 794 (8th Cir. 2010). Plaintiffs contend that by refusing to end the harassment of L.B. by other students, Defendants have violated Title VI's prohibition on intentional discrimination. Defendants argue that they are not subject to Title VI suit in their individual capacities because individuals are not grant recipients, that only the Superintendent and Board of Education are subject to Title VI suit in their official capacities, and that the alleged harassment of L.B. was not severe, pervasive, and objectively offensive enough to deprive L.B. of the equal access contemplated by Title VI. Plaintiffs concede that Defendants may not be sued under Title VI in their individual capacities, but respond that the Assistant Superintendent is also subject to an official-capacity suit and that the alleged harassment rises to an actionable level.
The parties are correct that no remedy exists against school officials in their individual capacities under Title VI. Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 610-11 (8th Cir. 1999) ("Kinman II").
Plaintiffs' Title VI discrimination claims against the District arise not from action, but from the District's inaction in the face of third-party harassment. Plaintiffs argue that this inaction rises to the level of intentional discrimination. The District may incur liability if it "acts with deliberate indifference to known acts of harassment in its programs or activities." Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999) (Title IX case). To be liable for harassment by one student against another, "an institution's deliberate indifference must either have caused the harassment or made students vulnerable to it." Roe v. St. Louis Univ., 2014 WL 1181097, at *5 (8th Cir. Mar. 25, 2014) (Title IX case). The District "must be (1) deliberately indifferent (2) to known acts of discrimination (3) which occur under its control." Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 782 (8th Cir. 2001) (Title IX case). Furthermore, the harassment to which the District was allegedly indifferent must be "so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." Davis, 526 U.S. at 650.
The Eighth Circuit has implied that this deliberate indifference test should be applied in Title VI intentional discrimination cases. See Meagley v. City of Little Rock, 639 F.3d 384, 389 (8th Cir. 2011) (explaining that the ADA and the Rehabilitation Act are modeled after Title VI and governed by Title VI precedent, then agreeing with other circuits and adopting the deliberate indifference standard for ADA and Rehabilitation Act violations). Deliberate indifference of a school to the sexual harassment of its students by other students can sometimes be said to cause that harassment and raise the school's indifference to the level of intentional discrimination in a Title IX case. Davis, 526 U.S. at 645. By analogy, the same level of deliberate indifference to harassment based on race, color, or national origin can raise a school's inaction to the level of intentional discrimination in a Title VI case.
Plaintiffs have alleged facts in their complaint that, taken as true, raise a reasonable expectation that discovery will reveal evidence that the District was indifferent to known acts of harassment based on race, color, or national origin when those acts were committed by students under its control. Plaintiffs have alleged that L.B. has been subjected to harassment based on race, color, or national origin; that the harassment has been ongoing over a period of years; that multiple officers of the District with control over the harassing students or the District's response had actual knowledge of that harassment; and that the District took no action in the face of that harassment. These facts are sufficient to support a Title VI cause of action for intentional discrimination by deliberate indifference to student-on-student harassment.
In moving to dismiss the Title VI discrimination claims, Defendants also argue that, by law, the alleged harassment did not rise to a level so severe, pervasive, and objectively offensive that it undermined and detracted from L.B.'s educational experience and effectively denied L.B. equal access to the institution's resources and opportunities. Defendants contend that "simple acts of teasing and name-calling among school children" are not actionable. (Doc. 8, ¶ 4 (quoting Davis, 526 U.S. at 652)). But Defendants ignore that the Davis opinion immediately explains that "in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect," thus distinguishing "simple" acts of teasing and name-calling from those acts of teasing and name-calling that rise to a level of actionable harassment. Davis, 526 U.S. at 652. Although Plaintiffs have not detailed every alleged act of harassment over the last seven years in their complaint, they have alleged that they repeatedly complained of continuing harassment during that period. Based on those allegations, it can reasonably be inferred that acts of harassment were pervasive during that period.
As for the severity and objective offensiveness of the harassment, indifference to unambiguously racial epithets has been found to cause "the sort of educational deprivation referenced in Davis." DiStiso v. Cook, 691 F.3d 226, 243 (2d Cir. 2012). Plaintiffs have also alleged that the harassment at times included a physical element and that the harassment was playing out on a level widespread enough to have driven most African-American and Hispanic students from the District. Furthermore, it is reasonable to infer from the allegation that Plaintiffs spent a significant amount of time complaining about the issue to multiple authorities that the alleged harassment was undermining and detracting from L.B.'s education. For the above reasons, Defendants' motion to dismiss the Title VI discrimination claims against the District will be denied.
In a Title VI action for intentional discrimination by retaliation, a plaintiff need not plead the prima facie elements of a retaliation claim to survive a motion to dismiss, but it is possible for a plaintiff to "plead himself out of court by alleging facts that indicate" the defendant is entitled to prevail. Chandamuri v. Georgetown Univ., 274 F.Supp.2d 71, 83 (D.D.C. 2003). "To prevail on a retaliation claim, the plaintiffs must prove that they engaged in protected activity and that they suffered an adverse . . . action as a result of that activity." Brine v. Univ. of Iowa, 90 F.3d 271, 273 (8th Cir. 1996) (Title IX case). If Plaintiffs' pleaded facts can in no case support a retaliation claim, then the retaliation claim should be dismissed.
Plaintiffs allege that they engaged in protected activity by filing a discrimination complaint with the United States Department of Education, Office of Civil Rights, which investigated, closed the complaint, and took no further action. The alleged adverse action in response to that activity is that the District continued to remain deliberately indifferent to the harassment. These facts are sufficient to show protected activity, and the Court assumes for the sake of argument that deliberate indifference could satisfy the "adverse action" element. However, on the facts as pleaded, Plaintiffs cannot demonstrate a causal link between the protected activity and the alleged adverse action. Plaintiffs allege that the District was indifferent to the harassment of L.B. The basis of their Title VI retaliation claims is that after Plaintiffs complained of this indifference to the Office of Civil Rights, the District retaliated by remaining indifferent to the harassment of L.B. Read fairly, Plaintiffs have pleaded that their discrimination complaint to the Office of Civil Rights caused no change in Defendants' behavior. The only adverse "action" Plaintiffs have alleged was one initiated prior to the protected activity. The Court is aware of no authority demonstrating that an effect can precede its cause. Because Plaintiffs have pleaded facts that, taken as true, cannot support a causal link between Plaintiffs' complaint to the Office of Civil Rights and the unchanged deliberate indifference of the District, Plaintiffs' Title VI retaliation claims will be dismissed.
Section 1983 provides a federal cause of action against "[e]very person
Plaintiffs complain that Defendants' indifference to the harassment of L.B. by other students violated L.B.'s Fourteenth Amendment right to equal protection. To prevail on a § 1983 claim under the Fourteenth Amendment, Plaintiffs must show "(1) violation of a constitutional right, (2) committed by a state actor, (3) who acted with the requisite culpability and causation to violate the constitutional right." Shrum, 249 F.3d at 777. The Fourteenth Amendment protects only against state action, and "erects no shield against merely private conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 U.S. 1, 13 (1948). The deliberate indifference of a state actor to harmful private action can lead to the state actor's liability under § 1983, but only if the person harmed is effectively in the state actor's custody. DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 199-200 (1989).
The harassment that Plaintiffs allege amounted to unconstitutional discrimination came from students. Students are private actors, and indifference to acts of discrimination by students is not a violation of the Fourteenth Amendment. See Dorothy v. Little Rock Sch. Dist., 7 F.3d 729, 731-32 (8th Cir. 1993) ("[S]tate-mandated school attendance does not entail so restrictive a custodial relationship as to impose upon the State the same duty to protect it owes to prison inmates or to the involuntarily institutionalized."). The case law cited by Plaintiffs is inapposite, as the deliberate indifference question here centers around the harmful acts of students, and not of a school district's employees. Because there was no constitutional duty to protect L.B. from injury by harassment from fellow students, Plaintiffs' § 1983 discrimination claims under the Fourteenth Amendment will be dismissed against all Defendants.
Plaintiffs complain that Defendants retaliated in response to their complaint to the Office of Civil Rights—an exercise of First Amendment rights—by remaining indifferent to the harassment of L.B. by other students. However, for the same reasons that Plaintiffs' Title VI retaliation claim must fail, any retaliation claim based on the pleaded facts must fail. Plaintiffs allege that the complaint caused no change in Defendants' behavior. Because Plaintiffs' alleged adverse effect preceded the protected activity, it is impossible for Plaintiffs to prove causal connection. Therefore, Plaintiffs' § 1983 claims of First Amendment retaliation will be dismissed against all Defendants.
Defendants named in their individual capacities argue that they are entitled to qualified immunity from suit under § 1983. Because Plaintiffs' § 1983 claims will be dismissed for failure to state a claim, no § 1983 claims remain against any Defendant in his or her individual capacity. Therefore, the Court need not address the qualified immunity argument further.
The ACRA establishes a private right of action for a deprivation of Arkansas state constitutional rights by a state actor. Ark. Code § 16-123-105(a). Plaintiffs' ACRA claims are based on the same theory and facts as their § 1983 claims, and may be dismissed for essentially the same reasons. Under Arkansas law, students are not state actors and a school district has no special relationship with its students that creates a state constitutional duty to protect them from student-on-student acts. Rudd v. Pulaski Cnty. Special Sch. Dist., 20 S.W.3d 310, 314-15 (Ark. 2000) (favorably citing the reasoning in Dorothy v. Little Rock Sch. Dist., 794 F.Supp. 1405 (E.D. Ark. 1992)). Regarding possible state law retaliation claims, the Court has found no Arkansas case law accepting that a retaliatory effect might precede its cause. Because Plaintiffs' pleaded facts do not state a claim for which relief can be granted under Ark. Code § 16-123-105(a), Defendants' motion to dismiss Plaintiffs' ACRA claims will be granted.
In their response to the motion to dismiss, Plaintiffs request that the Court allow them leave to amend their complaint in the event of dismissal. That request is denied for failure to follow the appropriate procedures. If, in light of the Court's decision on this motion to dismiss, Plaintiffs still wish to seek leave to amend from the Court, they may do so in accordance with the Local Rules of this Court.
For the reasons stated above, IT IS HEREBY ORDERED that Defendants' motion to dismiss for failure to state a claim (Doc. 7) is GRANTED IN PART and DENIED IN PART.
The motion is GRANTED IN PART insofar as the following parties and claims are DISMISSED WITH PREJUDICE for failure to state a claim:
IT IS FURTHER ORDERED that the motion is GRANTED IN PART insofar as the following claims and parties are DISMISSED WITHOUT PREJUDICE for failure to state a claim:
IT IS FURTHER ORDERED that the motion is DENIED IN PART insofar as Plaintiffs' Title VI action against Defendant Greenwood School District for discrimination by deliberate indifference to student-on-student harassment remains pending.
IT IS SO ORDERED.
