Butler v. Oak Creek-Franklin School Dist.

• Decision Date: 02 November 2001
• Docket Number: No. 00-C-1298.,00-C-1298.
• Parties: Jamaal BUTLER, Plaintiff, v. OAK CREEK-FRANKLIN SCHOOL DISTRICT, Oak Creek High School Athletic Department, Mike Richmond and the Oak Creek Coach's Council, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

172 F.Supp.2d 1102

Jamaal BUTLER, Plaintiff, v. OAK CREEK-FRANKLIN SCHOOL DISTRICT, Oak Creek High School Athletic Department, Mike Richmond and the Oak Creek Coach's Council, Defendants.

No. 00-C-1298.

United States District Court, E.D. Wisconsin.

November 2, 2001.

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Robert E. Sutton of Robert E. Sutton Law Office, Milwaukee, WI, for Plaintiff.

Charles H. Bohl and M. Elizabeth O'Neill of Whyte Hirschboeck Dudek S.C., Milwaukee, WI, for Defendants.

DECISION AND ORDER

ADELMAN, District Judge.

In September 2000, plaintiff Jamaal Butler filed suit in Milwaukee County Circuit Court, alleging that defendants unconstitutionally suspended him from high school athletics for 12 months following his fourth and fifth violations of the school athletic code. Defendants removed the case to federal court and, after the parties submitted briefs and presented oral arguments, I denied plaintiff's motion for a preliminary injunction. Butler v. Oak Creek-Franklin Sch. Dist., 116 F.Supp.2d 1038 (E.D.Wis. 2000) ["Butler I"]. I now address defendants' amended motion for summary judgment.¹

I. FACTUAL BACKGROUND

The following factual summary is principally drawn from the decision on the request for a preliminary injunction decision; citations to the record are provided for facts not recited in that decision. Oak Creek High School is a public school which allows its students to participate in athletics subject to the Oak Creek High School Training Code [hereinafter "the Athletic Code"]. As pertinent here, the Athletic Code prohibits student-athletes from consuming or possessing any amount of alcoholic beverages or controlled substances; from violating any criminal law or local ordinance; and from being at any gathering where minors are partaking of alcohol or drugs.

As Oak Creek High School Athletic Director, defendant Mike Richmond has "principal authority over ... decisions to suspend student athletes from school athletics." (Richmond Suppl. Aff. [R. 30] ¶ 2.) After the Athletic Director makes the initial decision to impose discipline, a student may appeal to the Coaches' Council, which consists of the principal, Athletic Director, all head coaches, and equipment manager. The decision of the Coaches' Council is the final decision.

The Athletic Code provides for progressive disciplinary sanctions for successive Athletic Code violations. An initial violation results in suspension from athletics for 25% of a season, and second and subsequent violations result in athletic suspension for one calendar year. Despite the Athletic Code's apparently mandatory language governing discipline, though, the Coaches' Council in practice has the power to, and frequently does, significantly reduce discipline initially imposed by the Athletic Director.

Plaintiff was disciplined for violating the Athletic Code three times before the 12-month suspension that is the subject of the present suit. In January 1998, he was suspended for 25% of the basketball season after being caught smoking. In April 2000, plaintiff received a municipal citation for possession of marijuana and Richmond imposed a 12-month athletic suspension. Plaintiff appealed this suspension to the Coaches' Council, and the Coaches' Council reduced the suspension to 25% of the games in each sport that plaintiff participated in the following calendar year, subject to several conditions. On June 10, 2000, plaintiff attended a party at which minors were drinking alcohol. Richmond imposed a 12-month athletic suspension, and plaintiff requested an appeal to the Coaches' Council, which was scheduled to be heard August 28, 2000.

The discipline at issue here was imposed for incidents on July 4 and July 17, 2000. On July 4, 2000, plaintiff was cited by the City of Oak Creek for unlawful possession of intoxicants by a minor and unlawful possession of fireworks. On July 17, 2000, plaintiff received a municipal citation for disorderly conduct in Greendale, a neighboring village. All three ordinances had statutory counterparts, so plaintiff's alleged misconduct would be criminal under the parallel statutes. The arresting officers for these incidents prepared detailed reports describing their first-hand observations of plaintiff's conduct, alleged self-incriminating statements made by plaintiff, and (for the fourth incident) the results of a Portable Breath Test on which plaintiff registered .01 grams of alcohol per 210 liters of breath. (Subst. Exs. in Supp. of Defs.' Br. in Supp. of Summ. J. [R. 21] [hereinafter "Defs.' Ex."], Ex. 16 at 3.) (This result is equal to the margin of error Wisconsin accepts for such tests, and is one-tenth of the 0.10 level that is prohibited for non-underage drivers without prior drunk driving convictions, revocations, or suspensions. Wis. Admin. Code § Trans. 311.10(1)(b) (2001); Wis. Stat. § 340.01(46m)(a).)

On August 28, 2000, the day that the Coaches' Council was scheduled to review plaintiff's suspension for his third incident, a reporter informed Oak Creek School District Superintendent John Voorhees of plaintiff's fourth and fifth incidents. (Sutton Aff. [R. 47] Ex. 9, Voorhees Resp. to Interrog. Nos. 3-4.) Voorhees testified that he attended the August 28, 2000 Coaches' Council meeting, and told its members "that the press had just informed me of the Disorderly Conduct situation in Greendale [the fifth incident] and that was not to be considered as part of the August 28, 2000 hearing." (Id. Voorhees Resp. to Interrog. No. 6.) Voorhees apparently did not mention the fourth incident. The Coaches' Council reduced plaintiff's 12-month suspension for the third incident to allow him to begin playing foot-ball September 29, 2000, subject to various conditions.

On August 31, 2000, Athletic Director Richmond summoned plaintiff to Principal Kathleen Jorgenson's office to interview him regarding the fourth and fifth incidents. (Richmond knew about these incidents even before Superintendent Voorhees advised the Coaches' Council of the fifth incident on August 28, 2000. (Sutton Aff. Ex. 14, Defs.' Resp. to Pl.'s Req. for Admis. ¶ 7.)) Richmond told plaintiff that the school had police reports describing his conduct on July 4 and July 17, 2000, told him that the conduct set forth in the reports violated the Athletic Code, and asked if plaintiff had anything to say. (Neither Richmond nor Jorgenson makes any claim that Richmond showed plaintiff the police reports or gave him copies.) Plaintiff declined to speak without his mother present. Richmond then suspended plaintiff from athletics for 12 months for his fourth and fifth Athletic Code violations and, after the interview finished, wrote plaintiff's parents that plaintiff had violated the Athletic Code.

On September 5, 2000, plaintiff submitted a written request for an appeal. A Coaches' Council hearing was initially scheduled for September 8, and then rescheduled to September 14, 2000 to accommodate plaintiff's witnesses. Sixteen members of the Council attended the hearing, including Richmond; one member, girls' basketball coach Jay Kalski, was absent. (Richmond Suppl. Aff. ¶ 4.) Plaintiff was represented by counsel and presented witnesses who spoke on his behalf. After testimony from plaintiff's witnesses and deliberation, the Coaches' Council affirmed the 12-month athletic suspension. (Id. ¶ 6.) The vote was very close: Seven Coaches' Council members voted to modify or overturn plaintiff's 12-month suspension, but nine voted to uphold the suspension. (Defs.' Resp. to Pl.'s Proposed Findings of Fact [hereinafter Defs.' Resp. to Pl.'s PFOF] [R. 49] ¶ 14.)

A court date of August 16, 2000 was set for plaintiff's citations from the fourth incident, but plaintiff did not appear. (R. 24 Exs. A, E.) As a result, no contest pleas were entered on his behalf and default judgments were entered against him on that date. (Id.) Defendants make no claim that these dispositions played any role in Richmond's initial decision to suspend plaintiff or the Coaches' Council's final decision to uphold that suspension. On July 18, 2001, a year after plaintiff's fifth incident, the Greendale Municipal Court acquitted plaintiff of committing disorderly conduct on July 17, 2000. (R. 51.)

II. SUMMARY JUDGMENT STANDARD

Summary judgment is required "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). The mere existence of some factual dispute does not defeat a summary judgment motion; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis omitted). For a dispute to be genuine, the evidence must be such that a "reasonable jury could return a verdict for the nonmoving party." Id.

Although summary judgment is a useful tool for isolating and terminating factually unsupported claims, Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), courts should act with caution in granting summary judgment, Anderson, 477 U.S. at 255, 106 S.Ct. 2505. When the evidence presented shows a dispute over facts that might affect the outcome of the suit under governing law, summary judgment must be denied. Id. at 248, 106 S.Ct. 2505.

The moving party bears the initial burden of demonstrating that he is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. Where the moving party seeks summary judgment on the ground that there is an absence of evidence to support the non-moving party's case, the moving party may satisfy its initial burden simply by pointing out the absence of evidence. Id. at 325, 106 S.Ct. 2548. Once the moving party's initial burden is met,...