ROGER B. COSBEY, United States Magistrate Judge.
This case arises out of a series of allegedly discriminatory school incidents that the Plaintiff, C.S., a minor, believes were perpetuated against him because of his race. Based on these events, C.S., through his next friend and Parents, advances various federal claims against the Smith-Green Community Schools Corporation ("Smith-Green") and several of its administrators, individual Defendants Austin Couch, Jerry Lange, and Nicole Singer (collectively, "Defendants").
In his Complaint, C.S. brought the following federal claims against Defendants: (1) a racially hostile environment claim under Title VI of the Civil Rights Act, 42 U.S.C. § 2000d; (2) a disparate discipline claim under Title VI; (3) an equal protection claim under the Fourteenth Amendment; (4) a due process claim under the Fourteenth Amendment; and (5) a false arrest claim under the Fourth Amendment. (Compl. Counts I-IV.) Defendants filed a Motion for Summary Judgment attacking each of these claims. (See Docket #24, 25.) C.S.'s response, however, addresses only the Title VI racially hostile environment claim (see Pl.'s Resp. 4-6) and
C.S. is a multi-racial student who attended Smith-Green schools until his expulsion during his freshmen year on April 10, 2009. (Compl. ¶¶ 4, 10-11; see C.S. Dep. 34.) Smith-Green operates Churubusco Middle School and Churubusco High School
During the 2008-2009 academic year, C.S. was a freshman at Churubusco High School. (C.S. Dep. 10, 34; Couch Dep. 9; Darnell Aff. Ex. 2.) Throughout that same time period, Austin Couch was the principal of Churubusco High School (Compl. ¶ 6; see Couch Dep. 5), Jerry Lange was an assistant principal at Churubusco High School (Lange Dep. 12-13), and Nicole Singer was the principal of Churubusco Elementary School (Singer Dep. 13).
C.S. alleges several different incidents of racial harassment dating back to the fall of 2004 and continuing through his expulsion in April 2009. (Compl. ¶¶ 12, 14; Pl.'s Answers to Defs.' Interrog. No. 5.) The first alleged incident occurred in the fall of 2004, when another student called C.S. "Nigger." (C.S. Dep. 19; Compl. ¶ 12(a); Pl.'s Answers to Defs.' Interrog. No. 5.) While C.S. testified that he did not remember this event (C.S. Dep. 19-20), his mother, T.L., remembered it and stated that she talked to C.S.'s teacher about the incident and that the student's parents brought him to their home (T.L. Dep. 19-20).
When C.S. was in seventh grade, during the 2006 to 2007 school year, he began to
The following school year (2007 to 2008), when C.S. was in eighth grade, this same student, J.L., threatened to kill C.S. on his birthday after instructing his friends to beat C.S. up in the bathroom.
Some time in 2008, another student called C.S. "Nigger." (Pl.'s Answers to Defs.' Interrog. No. 5.) It is unknown whether this incident was reported or if there was punishment. (Pl.'s Answers to Defs.' Interrog. No. 5.) During the 2008-2009 school year, a fight between S.W. and C.S. occurred in Phil Allen's agricultural classroom.
Shortly after the fight in Allen's classroom, in January or February 2009, another student told C.S. to "go back to Africa" while in the classroom, then, when C.S. went to the bathroom, the other student turned the lights out and said to C.S., "Now I can't find you." (C.S. Dep. 35-36; Pl.'s Answers to Defs.' Interrog. No. 5; Compl. ¶ 12(f).) C.S. indicated that he did not report this incident to anyone and that the school did not know about it. (C.S. Dep. 36-37, 61-62.)
On February 10, 2009, C.S. was presented with a "hate" note by a student picturing a Confederate flag underneath of which read, "Niggers beware," and "Niggers must be hung," with a stick figure showing an African-American hanging from a tree. (C.S. Dep. 37-38; Lange Dep. 58; Pl.'s Answers to Defs.' Interrog. No. 5; Compl. ¶ 12(g).) Lange, an assistant principal, became aware of this incident, and the student responsible for the note was suspended pending expulsion; he was subsequently allowed to return on a waiver of due process. (Lange Dep. 58-59.)
T.L. met with school officials regarding the alleged incidents of racial harassment and violence. (Compl. ¶ 13.) After C.S. was assaulted in the bathroom in April 2007, T.L. met with the middle school principal to institute a diversity program in the Churubusco schools. (Compl. ¶ 13; Davis Dep. 32; T.L. Dep. 53.) While a diversity program was not implemented at that time, it was later, in February of 2009, in the middle school.
Also during the 2008-2009 school year, C.S. was disciplined several times for violating the "Code of Conduct" set forth in the Churubusco High School Student Handbook, which was given to every student before the start of the year. (Lange Aff. ¶¶ 6-7.) C.S.'s first significant discipline occurred as a result of a series of behavior over several days, from December 4, 2008, to December 8, 2008, culminating in an all day "RS" on December 9, 2008. (Lange Aff. ¶¶ 8-9.) Specifically, on December 4, 2008, C.S. admittedly slapped another student and also made fun of a second student's family. (Lange Aff. ¶ 9.) On December 5, 2008, C.S. exchanged inappropriate words with a junior high student, threatened to fight the student, and later approached this student at his locker. (Lange Aff. ¶ 10.) Then, on December 8, 2008, C.S. called the same junior high student a "bitch" and later flipped him off in the hallway. (Lange Aff. ¶ 11.)
A little over a week later, on December 18, 2008, C.S. was involved in a fight with another student in the boys' locker room. (Lange Aff. ¶ 12.) The fight began as horseplay; the other student slapped C.S. in the face with a towel, and C.S. then whipped him with a towel in return, which caused a fight to break out. (C.S. Dep. 55-56.) C.S. stated that no racial words were exchanged. (C.S. Dep. 56.) Both C.S. and the other student accepted part of the blame and were given the same discipline.
On February 17, 2009, C.S. sprayed "Fart Spray" in English class, resulting in the evacuation of the room and cancellation of class. (Darnell Aff. Ex. 1; C.S. Dep. 57.) C.S. admitted that he sprayed this odor and that he violated school policy in doing so. (C.S. Dep. 58.) C.S. was subsequently suspended out of school for three days. (Darnell Aff. Ex. 1.)
On March 9, 2009, Lange received a complaint from a female student, who accused C.S. of touching her inappropriately on the bus ride home on March 6th. (Darnell Aff. Ex. 1; Lange Dep. 21-22; Lange Aff. Ex. 2.) She claimed that C.S. touched her breast and repeatedly put his fingers and hand down her shirt. (Lange Aff. Ex. 2; Darnell Aff. Ex. 1.) The female student reported telling C.S. to stop multiple times and that she hit his hand away. (Lange Aff. Ex. 2; Darnell Aff. Ex. 1.) She also alleged that C.S. made sexual comments to her and tried to slide his hand over her crotch. (Lange Aff. Ex. 2; Darnell Aff. Ex. 1.) At his deposition, C.S. testified that nothing inappropriate or sexual was said and that the female student had asked C.S. to feel the muscles on her arm, and he had done so. (C.S. Dep. 45.)
After receiving this report of sexual misconduct, Lange and Couch investigated the matter and interviewed C.S. and other students on the bus who were sitting around C.S. on that day, obtaining written statements from C.S. and students who indicated that they saw or heard something. (Lange Dep. 24, 26, 38; Lange Aff. Exs. 1-9.) They also talked to a handful of students who did not write statements because, when asked if they had seen or
The school's investigation also revealed that C.S. had touched and made inappropriate comments to the complainant on prior occasions as well and that he also made inappropriate sexual comments to another girl.
On March 10, 2009, C.S. gave his written incident statement in which he denied touching the complainant inappropriately and admitted that he made one inappropriate comment to her on March 6th, which was after another student made a sexual comment to her, and another inappropriate thing on a previous occasion, which he could not remember. (Lange Aff. Ex. 1.) C.S. made this statement while in Lange's office with only Couch present. (C.S. Dep. 50.) C.S. testified that Couch was "pressuring [him] to write a statement" and told him "to include everything that happened." (C.S. Dep. 50.)
After obtaining these statements, Lange and Couch presented the students' statements to Superintendent Bruce Hippensteel and gave him an overview of the information they had gathered at that point. (Lange Dep. 17-18.) Following this consultation, the Superintendent decided that expulsion proceedings should be initiated against C.S. (Lange Dep. 15, 17, 30.)
T.L. was notified of the allegations against C.S. on March 10, 2009.
Superintendent Hippensteel selected Singer, the principal of Churubusco Elementary School, to be the expulsion examiner. (Singer Dep. 35-36.) After receiving notification of her selection, Singer collected the documents that were relevant to the accusation against C.S., asking the school to give her everything that its administrators had used in the scope of their investigation. (Singer Dep. 40.) However, besides asking Lange and Couch for this information, Singer did not recall any other conversations with either Lange or Couch concerning C.S.'s expulsion hearing. (Singer Dep. 44.) The documents she received included the student witness statements and a document from the school recommending expulsion that also detailed C.S.'s other infractions from the school year. (Singer Dep. 44.)
After C.S. was suspended, his parents requested expedited testing to determine if C.S. qualified for special education services. (Lange Dep. 40; T.L. Dep. 131.) As the testing determined that C.S. was eligible for special education services in the areas of math reasoning and math calculation, a manifestation meeting was held on April 9, 2009, within a case conference committee session, to determine if C.S.'s disability played a role in his actions on March 6, 2009. (Darnell Aff. Exs. 2-7; Lange Aff. ¶ 13; Lange Dep. 40.) C.S., his parents, and Lange were among those present at the manifestation meeting. (Darnell Aff. Ex. 7.) It was determined that C.S.'s conduct on March 6th was not caused by and did not have a direct and substantial relationship to his disability and that C.S.'s conduct was not a direct result of the public agency's failure to implement an individualized education program. (Lange Aff. ¶ 13; Darnell Aff. Exs. 7, 9.) As such, the school's disciplinary procedures applied to C.S. (Lange Aff. ¶ 14.)
During the case conference on April 9, 2009, C.S. and his parents were offered a "Waiver of Due Process Rights: Probationary Continued Education Agreement," which would have placed C.S. on a probationary continued education program in lieu of expulsion. (Darnell Aff. Ex. 8; Lange Aff. ¶ 15.) However, neither C.S. nor his parents accepted this offer. (See Darnell Aff. Ex. 8.)
On April 10, 2009, Singer conducted an expulsion hearing in C.S.'s case. (Darnell Aff. Ex. 9.) C.S. was represented by his parents; Churubusco High School was represented by Lange and Couch. (Darnell Aff. Ex. 9.) At the hearing, both C.S. and the school presented exhibits and provided evidence in support of their case. (Darnell Aff. Ex. 9.) T.L. felt as though she were given an opportunity to present all the evidence she wanted at the expulsion hearing. (T.L. Dep. 118.) Singer reviewed all relevant testimony and evidence and excluded some. (Darnell Aff. Ex. 9.) On April 17, 2009, Singer rendered her decision, determining that C.S. violated the Churubusco High School Code of Conduct and that the evidence supported C.S.'s expulsion for one semester. (Darnell Aff. Ex. 9.)
Accordingly, C.S. was expelled for one semester. (Darnell Aff. Ex. 9.) Smith-Green continued to provide special education services to C.S. on the Home Bound program. (T.L. Dep. 130.) Although C.S. was eligible to return to Smith-Green at the beginning of the 2009-2010 school year (Darnell Aff. Ex. 9), C.S. enrolled at Cornerstone Christian School instead (T.L. Dep. 118).
Summary judgment may be granted only if there are no disputed genuine issues of material fact. Payne, 337 F.3d at 770. When ruling on a motion for summary judgment, a court "may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder." Id. The only task in ruling on a motion for summary judgment is "to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Kodish v. Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 507 (7th Cir.2010) (quoting Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994)). If the evidence is such that a reasonable factfinder could return a verdict in favor of the nonmoving party, summary judgment may not be granted. Payne, 337 F.3d at 770. A court must construe the record in the light most favorable to the nonmoving party and avoid "the temptation to decide which party's version of the facts is more likely true," as "summary judgment cannot be used to resolve swearing contests between litigants." Id. However, "a party opposing summary judgment may not rest on the pleadings, but must affirmatively demonstrate that there is a genuine issue of material fact for trial." Id. at 771.
After winnowing the case down, the Court will now address C.S.'s remaining two claims: (1) a racially hostile environment under Title VI and (2) a violation of C.S.'s Miranda rights under the Fifth Amendment.
C.S.'s Title VI claim is premised on the argument that Smith-Green intentionally created and tolerated a hostile racial environment. (Pl.'s Resp. 4.) In describing
Student-on-student harassment can give rise to a federal claim against a public school who receives federal funding under Title VI. Curley ex rel. Curley v. Hill, No. IP97-0570-CH/G, 2000 WL 1708007, at *1 (S.D.Ind. Sept. 7, 2000); cf. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650, 119 S.Ct. 1661, 143 L.Ed.2d
In order to hold a funding recipient liable under Title VI for a racially hostile environment, "a plaintiff must establish [racial] harassment of students that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." Davis, 526 U.S. at 651, 119 S.Ct. 1661. Because of the nature of a school setting, where students often engage in upsetting insults, banter, teasing, and shoving amongst each other, "damages are not available for simple acts of teasing and name-calling among school children, [ ] even where these comments target differences in [race]." Id. at 652, 119 S.Ct. 1661.
To recover damages, such student-on-student harassment must be so severe, pervasive, and objectively offensive that it denies its victims equal access to education. Id. The harassment must further have a "concrete, negative effect" on the victim's education, which may include dropping grades, becoming homebound or hospitalized due to harassment, physical violence, or physical exclusion from a school resource. See id. at 650-51, 119 S.Ct. 1661; Gabrielle M., 315 F.3d at 823; S.G. v. Rockford Bd. of Educ, No. 08 C 50038, 2008 WL 5070334, at *4 (N.D.Ill. Nov. 24, 2008); see also Trentadue v. Redmon, 619 F.3d 648, 654 (7th Cir.2010) (stating that the record failed to suggest the plaintiff was subjected to student-on-student harassment that was so pervasive, severe, and objectively offensive as to deny her equal access to education when her grades did not suffer, she was not extensively absent from school, she graduated with a class rank of 27 out of over 500, and then enrolled in college). If the plaintiff also experienced some kind of emotional trauma as a result of the harassment, like suicidal thoughts or a diagnosis of depression, in addition to the more tangible effects such as dropping grades or increased absenteeism, then such trauma can contribute to a conclusion that the severity and pervasiveness requirement is satisfied. See Davis, 526 U.S. at 653, 119 S.Ct. 1661 (finding that sexual harassment met the severity and pervasiveness requirement when plaintiff alleged that, as a result of this harassment, her grades dropped and she had written a suicide note); Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 261 (6th Cir.2000) (holding that the severity and pervasiveness requirement
In the instant case, C.S. asserts that other students perpetrated the following racially motivated discriminatory acts against him while he was a student in Smith-Green schools: (1) when C.S. was a fifth-grader, another student called him a racial epithet; (2) in sixth grade, the same student drew a picture of C.S. getting shot in the head;
This last allegation — that the sexual harassment allegations were fabricated by students who had previously discriminated against C.S. — is nothing more than speculation, and "reliance on speculation is not enough to get the case to a jury." Overly v. KeyBank Nat'l Ass'n, 662 F.3d 856, 864 (7th Cir.2011). C.S. offers no evidence even suggesting that the March 2009 sexual harassment allegations were fabricated by the students, much less that any fabrication was a result of racial discrimination. Such unsupported allegations do not provide evidence sufficient to withstand summary judgment.
While, accepting the remaining allegations as true, such racially hostile comments and racially motivated violence arguably created a severe and objectively offensive racial environment, C.S. fails to make the necessary link between this environment and a denial of educational opportunities and further fails to demonstrate a concrete, negative effect on his education as required by Davis. See Davis, 526 U.S. at 650, 119 S.Ct. 1661; Gabrielle M., 315 F.3d at 823. While such a denial may be evidenced by dropping grades or increased absenteeism, see Davis, 526 U.S. at 634,
As regards physical violence, while C.S. makes a few allegations of physical violence, his situation is distinguishable from that of the plaintiff in Vance, where the Sixth Circuit partly relied on acts of physical violence against the plaintiff in finding that the severity and pervasiveness requirement was met in a Title IX case. 231 F.3d at 259. In Vance, a male student stabbed the female plaintiff in the hand, and, on another occasion, two male students held her, while others grabbed her hair and started to yank off her shirt (one actually proceeding to remove his pants); she eventually experienced sexual harassment to the point where she was propositioned or touched inappropriately in virtually every class. Id. at 256-57. The plaintiff then filed a Title IX complaint with the school district, which resulted in the plaintiff being allowed to complete the remaining weeks of the school year at home, but no investigation into the allegations occurred. Id. at 257. She returned to the school the following year, but ultimately withdrew after only fifteen days; she was also diagnosed with depression. Id. In finding that these incidents satisfied the severity and pervasiveness requirement, the Sixth Circuit noted that "it is no wonder that [plaintiff] was diagnosed with depression." Id. at 259.
Here, C.S.'s most severe allegation of physical violence that school officials definitely knew about and that was not a two-sided fight, like the horseplay incident in ninth grade, occurred when C.S. was in eighth grade and involved him being thrown into a bathroom stall, where he then hit his head on a radiator. Unlike the school in Vance, rather than simply sending C.S. home to complete his studies and choosing not to investigate the allegations, Smith-Green's officials investigated the incident and punished the perpetrators. Moreover, C.S. never withdrew from Smith-Green schools because of verbal or physical attacks like the plaintiff in Vance. After the bathroom incident in eighth grade, C.S. remained in Smith-Green schools throughout that year and into the next, and there is no evidence that this physical violence denied him equal access to Smith-Green's educational opportunities.
Although C.S. was ultimately expelled from Churubusco High School, liability under Title VI for student-on-student harassment requires that the plaintiff be denied an educational opportunity by the harasser's actions, see Gabrielle M., 315 F.3d at 823, and C.S.'s expulsion was a result of his own actions rather than any racial harassment by other students.
Nevertheless, even if the actions by other students were so severe, pervasive, and objectively offensive as to have a concrete, negative effect on C.S.'s access to education, Smith-Green's response to known incidents of harassment did not amount to deliberate indifference. Under Title VI, "recipients of federal funding may be liable for `subject[ing]' their students to discrimination where the recipient is deliberately indifferent to known acts of student-on-student [racial] harassment and the harasser is under the school's disciplinary authority." Davis, 526 U.S. at 646-47, 119 S.Ct. 1661. In terms of liability, the recipient is held liable for its own decision to remain idle in the face of known student-to-student harassment; therefore, liability arises from "an official decision by the recipient not to remedy the violation." Id. at 641-42, 119 S.Ct. 1661 (quoting Gebser, 524 U.S. at 290, 118 S.Ct. 1989). At the same time, a funding recipient is deemed to have acted with deliberate indifference "only where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances." Id. at 648, 119 S.Ct. 1661 (emphasis added). Accordingly, "deliberate indifference must, at a minimum, cause [students] to undergo harassment or make them liable or vulnerable to it." Davis, 526 U.S. at 645, 119 S.Ct. 1661 (citation and internal quotation marks omitted) (alteration in original). On the other hand, funding recipients are not required to remedy peer harassment. Gabrielle M., 315 F.3d at 825. As a matter of fact, "Davis disapproved of a standard that would force funding recipients to suspend or expel every student accused of misconduct." Id.; see also Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1123 (10th Cir.2008) (holding that it was not clearly unreasonable for a school not to expel a student accused of sexual harassment). Importantly, "[t]he standard is not whether school officials acted reasonably or competently." Curley, 2000 WL 1708007, at *4.
Moreover, courts are to refrain from second-guessing school administrators' disciplinary decisions, and school administrators are to continue to have the flexibility they require in such decisions. Davis, 526 U.S. at 648, 119 S.Ct. 1661. Accordingly, "courts have been skeptical of arguments premised on the degree to which a school punishes its students," and "[t]he Supreme Court has rejected the argument that `victims of peer harassment... have a [Title VI] right to make particular remedial demands' on the school." DT v. Somers Cent. Sch. Dist., 588 F.Supp.2d 485, 494 (S.D.N.Y.2008) (quoting Davis, 526 U.S. at 648-49, 119 S.Ct. 1661).
When, after each reported or observed instance of harassment, the school disciplined the perpetrator or took steps to prevent future inappropriate conduct, the school's response has been found not to be "clearly unreasonable." Gabrielle M., 315 F.3d at 824; see Soper v. Hoben, 195 F.3d 845, 855 (6th Cir.1999) (concluding that the defendants were not deliberately indifferent when, once learning of student-on-student sexual harassment, they, among other precautions, immediately contacted the proper authorities and investigated the incidents themselves); Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 611 (8th Cir.1999) (finding that defendants were entitled
On the other hand, courts have found the issue of deliberate indifference to preclude dismissal or a grant of summary judgment when the school made no effort whatsoever to either investigate harassment, stop it, or discipline the offending student. See Davis, 526 U.S. at 654, 119 S.Ct. 1661 (finding that a lack of response could suggest "deliberate indifference" on the part of the school board, which made no effort whatsoever to either investigate or put an end to the harassment); Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1243 (10th Cir.1999) (upholding plaintiff's claim of deliberate indifference when school did not inform law enforcement, investigate, or discipline the offending student). Although, as C.S. points out, the Sixth Circuit has held that "where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of known circumstances," Vance, 231 F.3d at 261, the Seventh Circuit has not adopted this construction of "deliberate indifference" and has reiterated that "[a]ll that Davis requires is that the school not act clearly unreasonably in response to known instances of harassment," Gabrielle M., 315 F.3d at 825 (citing Davis, 526 U.S. at 648-49, 119 S.Ct. 1661) (emphasis in original).
Furthermore, because Smith-Green can only be held liable under Title VI for acts of student-on-student harassment about which it has actual knowledge, Gabrielle M., 315 F.3d at 823; see, e.g., Davis, 526 U.S. at 648, 119 S.Ct. 1661; Curley, 2000 WL 1708007, at *1, only some of C.S.'s allegations, when viewed in the light most favorable to C.S., can form the basis for liability. For a few of the alleged incidents, the record is either devoid of evidence of whether the incident was reported or if the perpetrators were punished or Plaintiff is unaware of whether a report or punishment occurred. As such, based on the record, it appears as if only seven, maybe eight, of the alleged incidents were reported or otherwise made known to school officials.
Therefore, based on the record as it stands now, of the six incidents allegedly motivated by race and of which school officials were definitely aware, the school took disciplinary action against the perpetrators in four. Instead of turning a blind eye to the harassment and doing nothing, the school officials investigated the matter and disciplined the students responsible, seemingly suspending each one and suspending (pending expulsion) the student responsible for the hate note. Accordingly, as regards to these incidents, the school investigated the matter and disciplined the perpetrator, making the school's response not clearly unreasonable. See Gabrielle M., 315 F.3d at 824, Soper, 195 F.3d at 855; Kinman, 171 F.3d at 611; cf. Davis, 526 U.S. at 654, 119 S.Ct. 1661 (finding that a failure to investigate could constitute deliberate indifference); Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1243 (10th Cir.1999) (upholding claim of deliberate indifference when school did not inform law enforcement, investigate, or discipline the offending student). Moreover, Smith-Green was not required to expel the students responsible for the racial harassment, which makes their decision to only suspend them or otherwise discipline them not clearly unreasonable. See Rost, 511 F.3d at 1123; Gabrielle M., 315 F.3d at 825. While Smith-Green and the individual Defendants could have done more, like instituting a diversity program as C.S.'s parents requested, they are not required to remedy peer harassment and, therefore, the fact that they did not remedy it does not make what they did do — investigate the incidents and punish those responsible — clearly unreasonable. See Gabrielle M., 315 F.3d at 825. Smith-Green was not required to respond reasonably or competently, but only to respond in a way that was not clearly unreasonable. Curley, 2000 WL 1708007, at *4. Additionally, Smith-Green's response to known incidents of racial harassment did not cause C.S. to undergo harassment or make him vulnerable to it, as is required for deliberate indifference. Davis, 526 U.S. at 645, 119 S.Ct. 1661.
At the same time, even though they were not required to do so, Smith-Green did institute diversity training for students in the middle school in February of 2009.
As for the incidents in fifth grade and on the football field, while C.S.'s teacher and two football coaches were notified about the respective incidents, there is no indication in the record that Smith-Green or anyone else at the school was ever so informed.
Furthermore, the Davis analysis requires that "a school official who possessed the requisite control over the situation had actual knowledge of, and was deliberately indifferent to, the alleged harassment." Murrell, 186 F.3d at 1247. While Davis is unclear about who exercises substantial control for the purposes of Title IX — and, therefore, Title VI — liability, it is possible that "where the victim is complaining about a fellow student's action `during school hours and on school grounds,' teachers may well possess the requisite control necessary to take corrective action to end the discrimination." Id. at 1247-48 (quoting Davis, 526 U.S. at 646, 119 S.Ct. 1661). What Davis does make clear is "that a school official who has the authority to halt known abuse, perhaps by measures such as transferring the harassing student to a different class, suspending him, curtailing his privileges, or providing additional supervision, would meet this definition." Id. at 1247. As such, "school districts can be found liable when a principal has actual
Additionally, focusing on the alleged perpetrators rather than each specific incident further supports the conclusion that the response of Smith-Green and its administrators to the alleged discriminatory acts was not clearly unreasonable. For instance, J.L. allegedly perpetrated at least three acts of racial discrimination against C.S.: (1) making racial comments on the football field; (2) threatening to kill C.S. on his birthday; and (3) instructing his friends to beat C.S. up in the bathroom. While it does not appear that Defendants had notice of the racial comments on the football field, once Smith-Green and its administrators were informed that J.L. made a death threat against C.S., they acted promptly and reasonably by suspending the student. See Rost, 511 F.3d at 1123 (holding it was not clearly unreasonable for a school not to expel a student accused of harassment). Similarly, the student who called C.S. a racial epithet in fifth grade also drew a picture of him getting shot in the head in sixth grade. While it is unclear if the fifth grade teacher reported the first incident to anyone else or if the school disciplined this student for the first incident, when the middle school principal was informed of the incident in sixth grade, he acted reasonably by suspending the student.
Moreover, in analyzing this record, the Court notes that it is well-established that a party will be successful in opposing summary judgment only when it presents definite, competent evidence to rebut the motion. E.g., Smith v. Severn, 129 F.3d 419, 427 (7th Cir.1997). While it is the Court's responsibility to determine if genuine issues of material fact exist, "[t]he parties ... bear a concomitant burden to identify the evidence that will facilitate this assessment." Waldridge, 24 F.3d at 920. Accordingly, "[j]udges are not like pigs, hunting for truffles buried in briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991). For the incidents in which Smith-Green's response is not in the record, it is impossible for the Court to determine whether Smith-Green's response was "clearly unreasonable" as its response, if any, is unknown. Deliberate indifference, which is established by showing that the school's response was clearly unreasonable, is an element of proving a Title VI claim, and the plaintiff bears burden of rebutting the motion for summary judgment with definite and competent evidence. Smith, 129 F.3d at 427. Summary judgment is "not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events." Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir.2007) (citation omitted) (emphasis added). C.S. has simply failed to present enough evidence to rebut the motion for summary judgment.
C.S. also contends that the individual Defendants' investigation into the sexual harassment allegations and their decision to expel him was "evidence of a hostile racial environment at Smith-Green." (Pl.'s Resp. 8.) To establish the elements of a prima facie case under Title VI, "a complaining party must demonstrate that [his] race, color, or national origin was the motive for the discriminatory conduct." Thompson v. Bd. of the Special Sch. Dist. No. 1, 144 F.3d 574, 581 (8th Cir.1998). The Court first notes that this argument is wholly undeveloped, and underdeveloped arguments are considered waived. Trentadue, 619 F.3d at 654. Nonetheless, the Court will briefly address this claim.
In a Title VI action, a plaintiff's speculative and unsupported contentions that an administrator's decision was motivated by discrimination is insufficient to survive summary judgment. See Thompson, 144 F.3d at 581 (granting summary judgment to school when the plaintiff offered no evidence that race was the motivating factor in his suspensions); Shahid v. Nw. Univ., No. 94 C 7721, 1997 WL 690680, at *4 (N.D.Ill. Oct. 21, 1997) (finding that the plaintiff in a Title VI claim offered no evidence that two professors' decisions to deny the plaintiff's Ph.D. candidacy was motivated by anything other than their own academic judgment). C.S. puts forth an unsupported and speculative argument that a group of students fabricated the sexual harassment allegations and that Couch and Lange ignored inconsistencies among the statements they received from other students and failed to take statements from students who were on the bus and heard nothing. As noted above, however, there is no evidence in the record supporting these speculations. While Lange testified that when talking with students about the allegations on the bus, if a student said they did not know what he was talking about, then Lange did not feel there was a reason to take a statement (Lange Dep. 38), this does not lead to a conclusion that the investigation and ultimate decision to initiate expulsion proceedings against C.S. were racially motivated or clearly unreasonable in light of what the investigation did undercover. Rather, "to support a Title VI claim against defendants, plaintiff[ ] must still show that the School was deliberately indifferent to racial hostility and, as discussed above, plaintiff[ ] [has] not proffered sufficient evidence to support such a claim." DT, 588 F.Supp.2d at 497.
In DT, the plaintiffs argued that the defendants' decision to suspend the plaintiff following a hearing regarding a locker room theft constituted deliberate indifference and offered expert testimony that the acts of racial hostility against the plaintiff lead to his theft. Id. The court, however, found this argument unpersuasive and focused on the fact that the record indicated that the defendants carefully considered the relevant evidence in reaching their decision to suspend the plaintiff and concluded that "their resolution of the matter was not the result of deliberate indifference." Id. The court further noted that the plaintiffs appealed the suspension and it was affirmed twice, with the conclusions that the plaintiff's suspension was nonetheless warranted based on the school's code of conduct and that the defendants did not fail to consider relevant mitigating evidence in deciding to suspend the plaintiff. Id.
Furthermore, Singer, who was not involved in the investigation in any way, was the one who ultimately made the decision to expel C.S., citing the specific codes of conduct that C.S. violated (see Darnell Aff. Ex. 9) and after a hearing in which T.L. felt as though she were given an opportunity to present all the evidence she wanted (T.L. Dep. 118). Accordingly, the record indicates that the Defendants carefully considered the relevant evidence in reaching their decision to expel C.S. and that their investigation and subsequent decision to expel C.S. was not clearly unreasonable. Rather, the decision was warranted by C.S.'s violations of the Churubusco High School Code of Conduct and, thus, did not constitute deliberate indifference. DT, 588 F.Supp.2d at 497. Furthermore, C.S. has failed to offer any evidence that the initiation of expulsion proceedings against him and his subsequent expulsion were motivated by anything other than the Defendants' judgment about the appropriate discipline, see Shahid, 1997 WL 690680, at *4, and he has failed to offer any evidence, besides his own conclusory assertions and speculation, that the Defendants were motivated by a desire to "divest the school" of him (Pl.'s Resp. 7) or by racial hostility.
Once again, summary judgment is the "put up or shut up" moment of a lawsuit, Steen, 486 F.3d at 1021, and C.S. has failed to present sufficient evidence to rebut Defendants' motion for summary judgment. While, if true, the treatment C.S. received in Smith-Green schools is disturbing, the record simply falls short of establishing a basis for Title VI liability. Trentadue, 619 F.3d at 654. Accordingly, Smith-Green is entitled to summary judgment on C.S.'s claim of a hostile racial environment under Title VI for both student-on-student harassment and any alleged discriminatory acts by the individual Defendants.
Besides his Title VI claim, C.S. also alleges that Defendants violated his Miranda
First, Lange and Couch's questioning of C.S. did not implicate the safeguards of Miranda. Under Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), "a suspect interrogated by law enforcement officers while in custody must be notified of his constitutional rights to counsel and against self-incrimination." United States v. Thompson, 496 F.3d 807, 810 (7th Cir.2007) (construing Miranda). Miranda's protections are not triggered, however, until the suspect is both "in custody" and subjected to "interrogation." Id. (citing United States v. Barker, 467 F.3d 625, 628 (7th Cir.2006)). For the purposes of Miranda, a person is "in custody" when there is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Barker, 467 F.3d at 628 (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602). "Custody" means "a situation in which the suspect knows he is speaking with a government agent and does not feel free to end the conversation; the essential element of a custodial interrogation is coercion." Thompson, 496 F.3d at 810 (quoting United States v. Salyers, 160 F.3d 1152, 1159 (7th Cir.1998)).
The question is whether, under the totality of the circumstances, a reasonable person would have felt at liberty to end the interrogation and leave. United States v. Littledale, 652 F.3d 698, 701 (7th Cir. 2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 662, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). While this is an objective inquiry, the Supreme Court has recently held that a minor's age is relevant in the custody analysis "so long as the child's age was known to the officer at the time of the police questioning, or would have been objectively apparent to a reasonable officer." J.D.B. v. North Carolina, ___ U.S. ___, 131 S.Ct. 2394, 2406, 180 L.Ed.2d 310 (2011).
Although a child's age factors into the custody analysis, custody and interrogation do not exist without the presence of law enforcement officers. See Miranda, 384 U.S. at 444, 86 S.Ct. 1602 (defining "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way" (emphasis added)). Even the holding of J.D.B. itself is limited to the questioning of children by law enforcement officers. See J.D.B., 131 S.Ct. at 2406 (holding that a child's age should be considered "so long as the child's age was known to the officer at the time of police questioning, or would have been objectively
Accordingly, in the school context, courts have drawn distinctions between a student being questioned by only a school official at school and a student being questioned by a law enforcement officer at school. Compare S.E. v. Grant Cnty. Bd. of Educ., 544 F.3d 633, 641 (6th Cir.2008) (finding that an assistant principal who was not acting at the behest of law enforcement officers and whose questioning of a student occurred outside of the presence of law enforcement officers was not required to give the student Miranda warnings) and Boynton v. Casey, 543 F.Supp. 995, 997 (D.Me.1982) (holding that a student was not entitled to Miranda warnings prior to being questioned by school authorities), with Husband v. Turner, No. 07-CV-391-bbc, 2008 WL 2002737, at *3 (W.D.Wis. May 6, 2008) (determining that a student was entitled to Miranda warnings when he was escorted to the interrogation by security guards and an assistant principal, was questioned by police officers in a closed room at school with no one else present after the officers had identified themselves as police officers, and was never told he was free to refuse to answer the questions and leave). Neither the Supreme Court nor the Seventh Circuit has answered the question of whether a police interview of a juvenile at school is custodial and, thus, subject to Miranda. Husband, 2008 WL 2002737, at *3.
Similarly, while no case from either court has directly addressed the situation in which a school official, rather than a police officer, does the questioning, Indiana courts have held that a student being questioned by school officials, rather than law enforcement officers, at school is not entitled to Miranda warnings prior to questioning. G.J. v. State, 716 N.E.2d 475, 477 (Ind.Ct.App.1999) (finding Miranda safeguards inapplicable where student was not in police custody and was questioned by a school official rather than a police officer); S.A. v. State, 654 N.E.2d 791, 797 (Ind.Ct.App.1995), disapproved of on other grounds by Alvey v. State, 897 N.E.2d 515 (Ind.Ct.App.2008) and by Alvey v. State, 911 N.E.2d 1248 (Ind.2009) (holding that a student was not subjected to custodial police interrogation and, thus, that Miranda was inapplicable when he was questioned in the vice principal's office in a public school by the vice principal and his father, the atmosphere was not coercive, and the student was not in police custody or interrogated by a police officer).
Miranda was concerned with the "intimate connection between the privilege against self-incrimination and police custodial questioning" and the "inherently compelling pressures" in custodial police interrogation. 384 U.S. at 458, 467, 86 S.Ct. 1602. In coming to the conclusion that a student is not entitled to Miranda warnings before being questioned by school officials, the Indiana Court of Appeals focused on the policy underlying the Miranda safeguards — overcoming the inherently coercive and police dominated atmosphere of custodial interrogation — determining that, when school officials
Here, C.S. was questioned by Couch and Lange at school. Unlike Husband, 2008 WL 2002737, at *3, in which the student was left alone in a closed room with police officers who then questioned him, no law enforcement officers were present or involved during C.S.'s questioning or statement preparation. Moreover, nothing suggests that Couch and Lange were acting at the behest of law enforcement officials in questioning C.S., which further supports the conclusion that Lange and Couch were not required to advise C.S. of his Miranda rights. See S.E., 544 F.3d at 641. Therefore, because C.S. was questioned by school officials, who were acting on their own and without involvement from law enforcement, C.S. was not undergoing "custodial interrogation," and, consequently, the Miranda safeguards were inapplicable to him.
Nonetheless, even if C.S. were entitled to Miranda warnings prior to questioning by the school officials, C.S.'s claim would still fail because his statements were never used against him in a criminal proceeding. In Chavez v. Martinez, 538 U.S. 760, 771-72, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003), the Supreme Court narrowed the availability of the Fifth Amendment as a basis for civil liability, holding that a police officer's questioning of the plaintiff without Miranda warnings did not violate the Self-Incrimination Clause of the Fifth Amendment because the plaintiff's compelled statements had not been used against him in a criminal case. While the Chavez plurality declined to define "the precise moment when a `criminal case' commences," at the very least, it requires "the initiation of a legal proceeding." Sornberger, 434 F.3d at 1025 (quoting Chavez, 538 U.S. at 766, 123 S.Ct. 1994). In Sornberger, the Seventh Circuit expanded on the Chavez decision, holding that even when the un-warned statements are not used at trial, earlier "courtroom uses," such as use in a probable cause hearing, a bail hearing, or arraignment, may provide a basis for civil liability. 434 F.3d at 1026-27.
Drawing on Sornberger, the Seventh Circuit has also held that the use of unwarned statements at a suppression hearing constituted use in a "criminal case," Best v. City of Portland, 554 F.3d 698, 702-03 (7th Cir.2009), but that using the statement to simply arrest the plaintiff is insufficient to provide a basis of civil liability because "interrogation that yields incriminatory evidence never used in court does not support an award of damages," Hanson v. Dane Cnty., Wis., 608 F.3d 335, 339 (7th Cir.2010). In Hanson, the Court found that the defendant officers did not violate the plaintiff's privilege against self-incrimination, regardless of whether they should have given him Miranda warnings,
In the instant case, C.S.'s statements were never used against him in a criminal case. He was never arrested, and after a preliminary inquiry by Whitley County Juvenile Probation Department, all charges against C.S. were dismissed. (Pl.'s Answer to Defs.' Interrog. No. 5.) C.S.'s unwarned statements were never used against him in the courtroom at any proceeding as they were against the Sornberger and Best plaintiffs. The statements were never even used to arrest him, which would have been insufficient to provide the basis for civil liability in any event. Hanson, 608 F.3d at 339. Moreover, C.S. does not argue that the statements were used against him in a criminal case, which causes his claim to fail as a matter of law. Paige, 2010 WL 3522526, at *8. Therefore, Defendants are entitled to summary judgment on C.S.'s Fifth Amendment claim.
For the reasons set forth above, the Court GRANTS the Defendants' Motion for Summary Judgment (Docket # 24) and DIRECTS the Clerk to enter judgment in favor of Defendants and against Plaintiff C.S.
SO ORDERED.
Nevertheless, the Court briefly notes that Title IX of the Civil Rights Act is modeled after Title VI such that the two statutes operate in the same manner, Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998), and "a decision with respect to one statute applies to the other statute," Doe v. Galster, No. 09-C-1089, 2011 WL 2784159, at *6 (E.D.Wis. July 14, 2011). Therefore, as the Seventh Circuit Court of Appeals has held that a plaintiff cannot maintain a Title IX action against a high school principal or assistant principal in either their individual or official capacities because a private cause of action under Title IX could only be brought against the recipient of federal grant money, not an individual, Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1019-21 (7th Cir.1997), this rule applies to Title VI claims as well, see Roger C. ex rel. Gilbert v. Valley View Pub. Sch. Dist. No. 365-U, No. 08 C 1254, 2008 WL 4866353, at *8 (N.D.Ill. June 23, 2008) (holding that "[b]ecause Section 2000d prohibits discrimination by recipients of federal funding, [ ] individual defendants cannot be held liable for violations of Title VI"). Accordingly, C.S.'s Title VI claims against the individual Defendants fail as a matter of law, and the Court GRANTS summary judgment in favor of the individual Defendants, Couch, Lange, and Singer, on the Title VI claims. Cf. Renguette v. Bd. of Sch. Tr. ex rel. Brownsburg Cmty. Sch. Corp., 540 F.Supp.2d 1036, 1043 (S.D.Ind.2008) (holding that Title IX claims brought against individually named defendants fail as a matter of law).
Nonetheless, despite this uncertainty, the Court does not have to decide this question today. Even considering all of C.S.'s allegations dating back to the fall of 2004, C.S.'s Title VI claim fails as a matter of law. Moreover, if the Court followed the other circuits and did not consider those incidents occurring before July 19, 2008, C.S.'s claim is even weaker and, thus, would still fail. No matter what statute of limitations is applied, it does not change the outcome of this case; Smith-Green is entitled to summary judgment on C.S.'s Title VI claim.
