Doe v. Big Walnut Local Sch. Dist. Bd. of Educ.

• Decision Date: 27 July 2011
• Docket Number: Case No. 2:09–cv–0367.
• Parties: David DOE, et al., Plaintiffs, v. BIG WALNUT LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

837 F.Supp.2d 742

281 Ed. Law Rep. 292

David DOE, et al., Plaintiffs,

v.BIG WALNUT LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, et al., Defendants.

Case No. 2:09–cv–0367.

United States District Court,

S.D. Ohio,

Eastern Division.

July 27, 2011.

Sherry M. Phillips, Phillips Law Office, Mount Vernon, OH, for Plaintiffs.

Nathan Daniel Painter, Isaac, Brant, Ledman, & Teetor, LLP, Columbus, OH, for Defendants.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

Plaintiffs David, Mary and John Doe initiated this action against Defendants Big Walnut Local School District Board of Education, Principal of the Big Walnut Middle School, Stephen House, and the Superintendent April Domine, alleging violations of their substantive due process rights, the Americans with Disabilities Act, and state law claims. This matter is before the Court on Defendants' Motion for Summary Judgment (Doc. 27). The motion is fully briefed and now ripe for review. For the reasons that follow, Defendants' Motion for Summary Judgment is GRANTED.

As a preliminary matter, Plaintiff recently filed a Motion for Leave to File a Supplemental Affidavit (Doc. 71). Defendants oppose Plaintiff's Motion. The Court, however, finds that Plaintiff is simply clarifying information submitted in his first affidavit, and there is no prejudice to Defendants. Accordingly, Plaintiff's Motion is GRANTED.

I. FACTS

Plaintiffs David and Mary Doe are individuals who reside in Delaware County, Ohio, and bring this suit on behalf of their minor son, John Doe, who resides with them. Plaintiff John Doe is a student in the Big Walnut Local School District (“Big Walnut”). He has been diagnosed with Cognitive Disorder, which includes difficulty in social interactions.

Defendant Big Walnut Local School District Board of Education (“School Board”) is responsible for implementing the laws, policies, regulations, and procedures for Big Walnut. Defendant April Domine is the Superintendent of Big Walnut. Defendant Stephen House is the Principal of the Big Walnut Middle School.

Plaintiff John Doe attended the Big Walnut Middle School during the 2005–06, 2006–07, and 2007–08 school years, and now is a student at Big Walnut High School. John Doe's cognitive disability limits his capability to learn as quickly as other students and inhibits his ability to multi-task. Due to his disability, John Doe has an Individualized Education Plan (“IEP”). The IEP sets forth interventions to assist John Doe with his education and social interaction. John Doe's May 1, 2004 IEP stated:

a. Interpersonal problems: very significant; b. Inappropriate behaviors/feelings: significant;

c. Depression: very significant;

d. Physical symptoms/fears: very significant.

(Mary Doe Depo. Ex. 2).

In a subsequent IEP, dated May 24, 2007, it was reported that John Doe “continues to indicate well below average general intellectual functioning deficits in his overall adaptive behavior as well as significant deficits in the areas of self-direction and communication.” (Mary Doe Depo. Ex. 10).

To assist John Doe's educational progress, he was placed in a Resource Room at the Big Walnut Middle School. Resource Rooms are for students with disabilities, who are provided services mandated by federal and state law. Students with disabilities are encouraged to receive instruction in a regular classroom, and in this situation, a teacher or assistant from the Resource Room would accompany the student with the disability to a regular classroom. Thus, a student with a disability would have the support of two instructors. (House Aff. ¶¶ 12–17).

John Doe's teachers indicated that he had difficulty distinguishing between proper and improper behavior in certain settings. He acted inappropriately in class sometimes, which interrupted class and caused negative interaction with his peers. (House Aff. ¶ 20). According to Defendants, John Doe's behavior and sometimes difficult interaction with other students was never identified as being a result of John Doe's cognitive disability, thus the school's code of conduct applied to him. (House Aff. ¶ 20, Ex. A).

Defendant House, as principal, was aware of several incidents involving John Doe and other students at Big Walnut Middle School, including teasing, pushing, punching, name-calling, and throwing food. (House Aff. ¶¶ 22–23). Such incidents of inappropriate conduct that was observed by school officials or brought to the attention of school officials was investigated. These investigations revealed that in some instances John Doe was the aggressor or initiator and in others he responded or mutually engaged in the behavior. At all times, appropriate action was taken depending upon the circumstances including but, not limited to, talking to the students about the situation to resolve the matter, lunch detention, after-school detention, separation of the students in the classroom, and suspension from school. ( Id.).

Prior to April 17, 2007, John Doe's parents contacted Defendant Principal House regarding some of the incidents that John Doe was involved in with other students. Principal House had several conversations with John Doe's parents and informed them that actions were taken, including discipline, to address these situations. Defendant House describes that at no time did the school ever ignore an incident between John Doe and another student that was brought to its attention by John Doe, his parents, or otherwise. (House Aff. ¶¶ 24–25). Plaintiffs David and Mary Doe expressed concern that John Doe was in IEP classes with students who would bully and taunt him.¹

On April 17, 2007, John Doe was involved in a fight with two other students in which his nose was broken. (House Aff. ¶ 26). Plaintiff John Doe described the fight as follows:

Q. So it's now after school on April 17th, 2007. Did you know that they were looking for you to fight?

A. No.²

Q. All right. So what happens?

A. I'm usually walking with my friends to the bus, and 41 comes up and just hits me in the nose. And then the next thing I know, I'm down. Like, I just feel underneath my nose, there's blood all over my hand. I look up, the next thing I know, 26 comes up behind me, kicks me in the head, knees me in the nose a couple of times and kicks me on the ground. They just walk away like nothing happened. I get up, walk to the bus, blood dripping out everywhere, spitting out blood, and the bus driver gives me tissues, and they call the principal, and I go to the office.

Q. You threw a punch in that fight, didn't you?

A. No.

Q. You don't remember throwing a punch in that fight?

A. I absolutely did not throw a punch. I did not have a chance to throw a punch.

Q. If there were student reports that say you threw a punch, they would be lying?

A. They must be lying. There is no way I could throw a punch.

(John Doe Depo. at 30–31).

Plaintiff John Doe waited in the Principal's office as his father, David Doe, was called to pick him up. No medical or law enforcement personnel were called to the scene. When David Doe arrived at the school, he saw his son's blood leading to the office. (David Doe Depo. at 92–97). As a result of the fight on April 17th, the two other students involved were suspended from school for three days, and Plaintiff John Doe was not disciplined. (House Aff. ¶ 28). Defendant Domine, the Superintendent of Big Walnut Local School District, did not become aware of John Doe or any incidents or altercations he may have been involved with until sometime during the summer of 2007 before John Doe entered the eighth grade at Big Walnut Middle School. (Domine Affidavit ¶¶ 1, 13).

During the summer of 2007, Defendants were contacted by legal counsel for the Does. (House Aff. ¶ 29; Domine Aff. ¶ 14). House subsequently devised a safety plan and submitted the plan to Domine. (House Aff. ¶ 30; Exhibit F to House Aff.; Domine Aff. ¶ 14). This safety plan included apprising John Doe's teachers of the physical and emotional concerns resulting from the April 17th fight; adjusting the schedules of the students involved in the fight to ensure the least amount of interaction time between these students and John Doe; requiring John Doe to see Mr. Myers, a guidance counselor selected personally by John Doe, each morning and report any incidents or other concerns John Doe may have; and requiring John Doe to notify House, Linda Snouffer (Dean of Discipline), or Mr. Jay Walker (Asst. Principal) immediately upon any alleged harassment from other students. (House Aff. ¶ 30; see also Mary Doe Depo. at 174–76). John Doe's parents approved of this plan. (House Aff. ¶ 31). After this safety plan was initiated, Big Walnut officials reviewed the safety plan in late-October/early-November 2007. ( Id. at ¶¶ 31, 32; DomineAff. ¶ 15, 16). Although some of the strategies employed in the initial safety plan were working, additional measures were implemented because John Doe was still having difficulty with some students. Id. These additional measures included excusing John Doe from class early to lessen the interaction he had with students in the hallway; finding more discreet ways of having John Doe communicate with Mr. Myers; assigning a teacher's aide to monitor John Doe in the hallway, at lunch and on the playground; and allowing John Doe to use the restrooms in the office if he desired. (House Aff. ¶¶ 32, 34; Domine Aff. ¶¶ 16–17).

On January 24, 2008, Domine held a meeting with John Doe's teachers and others who assisted John Doe to discuss additional goals and strategies to help John Doe learn to deal with difficult social situations. (House Aff. ¶ 35; Domine Aff. ¶ 18). Thereafter, John Doe participated in exercises with his teacher and others to help him identify the type of interactions he was involved with and whether his responses were appropriate to the situation. (House Aff. ¶ 35; Domine Aff. ¶ 19). Moreover, school officials kept in contact with John Doe's parents and made sure that the parents and John Doe had a line of communication...