Fennell v. Marion Indep. Sch. Dist.

• Decision Date: 02 August 2013
• Docket Number: Cv. No. SA:12–CV–00941–DAE.
• Citation: 963 F.Supp.2d 623
• Parties: Kyana FENNELL and Lawanda Fennell–Kinney, as Next Friend of Kyrianna Adams Fennell and Kavin Johnson, Plaintiffs, v. MARION INDEPENDENT SCHOOL DISTRICT; Glenn Davis, individually; Ashley Smith, individually; and Cynthia Manley, individually, Defendants.
• Court: U.S. District Court — Western District of Texas

963 F.Supp.2d 623

Kyana FENNELL and Lawanda Fennell–Kinney, as Next Friend of Kyrianna Adams Fennell and Kavin Johnson, Plaintiffs,

v.MARION INDEPENDENT SCHOOL DISTRICT; Glenn Davis, individually; Ashley Smith, individually; and Cynthia Manley, individually, Defendants.

Cv. No. SA:12–CV–00941–DAE.

United States District Court,

W.D. Texas,

San Antonio Division.

Aug. 2, 2013.

R. Chris Pittard, Forte & Pittard, PLLC, San Antonio, TX, for Plaintiffs.

Donald Craig Wood, Walsh, Anderson, Gallegos, Green & Trevino, P.C., San Antonio, TX, Stacy Tuer Castillo, Walsh, Anderson, Brown, Gallegos and Green P.C., San Antonio, TX, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' SECOND MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

DAVID ALAN EZRA, Senior District Judge.

On June 21, 2013, the Court heard oral argument on Defendants' Second Motion to Dismiss for Failure to State a Claim. (Doc. # 18.) R. Chris Pittard, Esq., appeared on behalf of Plaintiffs; Craig Wood, Esq., and Stacy Castillo, Esq., appeared on behalf of Defendants. After reviewing the Motion and the supporting and opposing memoranda, and in light of the parties' arguments at the hearing, the Court, for the reasons that follow, GRANTS IN PART AND DENIES IN PART Defendants' Motion.

BACKGROUND

I. Factual Allegations

Plaintiff Kyana Fennell (“Kyana”), age 18, is a former student of the Marion Independent School District (“Marion ISD”) and an African–American. (Doc. # 4 at 4.) Plaintiff Lawanda Fennell–Kinney (“Ms. Fennell–Kinney”) is Kyana's mother and next friend of Plaintiffs Kyrianna “Kyra” Adams Fennell (“Kyra”) and Kavin Johnson (“Kavin”), her minor children who are also African–American and former students of the Marion ISD. ( Id.)

Kyana, Kyra, and Kavin each attended school in the Marion Independent School District beginning in the first grade and continuing through the 2011–2012 academic school year. (SAC ¶ 11.) Plaintiffs allege that as early as 2008, Kyana, Kyra, and Kavin “began experiencing racially-based comments, taunts and electronic images sent via cell phone texts and on social media websites such as Facebook.” ( Id. ¶ 13.) In that year, Kyra allegedly received a text message from a white classmate that contained an animation of the Klansmen of the Ku Klux Klan swinging a noose to the tune of a song that was popular at the time. ( Id.) Kyra “confronted” the classmate and was suspended for three days. ( Id.) While the school's principal allegedly “was made aware of the situation involving the text ... no action was taken against the white classmate.” ( Id.) Kyra was allegedly subjected to racial slurs and comments from 2008 through the 2011–2012 academic year, “but no action [was] taken against the white students.” ( Id.)

Plaintiffs allege that in February 2011, one white girl and two Hispanic girls surrounded Kavin at her locker and began taunting her. ( Id. at 14.) When Kavin tried to extricate herself from the situation, at least one of the girls punched her and threw her back against her locker. ( Id.) The school suspended Kavin and one of the Hispanic girls based on this incident but “took no action against [Kavin's] white attacker.” ( Id.) The principal allegedly “refused to conduct an investigation into the incident until after Kavin had completed the disciplinary action and then determined that, in fact, Kavin [had been] acting in self-defense.” ( Id.) However, the school took no additional action against Kavin's aggressors, allegedly claiming that “the ‘time period’ had passed to take action.” ( Id.)

On numerous occasions from 2011 to 2012, Kavin allegedly reported to the Marion Middle School principal, Mr. Wendel, and later to Ms. Kelley Walters, that multiple white classmates had called her such names as “blackie,” “black girl,” and “nigger.” ¹ ( Id. ¶ 15.) During her seventh-grade year, after a classmate told a “black” joke, Kavin allegedly reported the incident to her teacher, Mr. Alferbacht, and also to the assistant principal, Ms. Walters. ( Id.) However, Plaintiffs allege that the school took no action. ( Id.)

Plaintiffs allege that when Kavin tried out for the middle school's cheerleading team, white classmates told her that “black girls weren't pretty enough to be cheerleaders” and that she “looked like a boy.” ( Id. ¶ 15.) Although Kavin made the cheerleading team, she was allegedly “excluded from cheerleader activities sponsored by many of her white classmates, and ostracized by her teammates.” ( Id.)

When Kyana was in kindergarten, a white boy allegedly called her a “nigger.” ( Id. ¶ 16.) While Kyana was disciplined for punching the boy in retaliation, the school allegedly took no action against him for his racial slur. ( Id.) Similarly, Plaintiffs allege that the school took no action against a white classmate who called Kyana a “nigger” in middle school or a white classmate who called Kyana a “stupid nigger” in high school. ( Id.)

In high school, the white athletic director, Defendant Glenn Davis, allegedly “admonished” Kyana “for her ‘ethnic’ hairstyles, when she was required to wear her hair in ‘micro-braids' because of damage to her hair.” ( Id. ¶ 16.) By contrast, Plaintiffs allege that “[w]hite students who wore their hair in different shades of colors, like purple, red, or green, were not similarly rebuked or admonished.” ( Id.)

On January 17, 2012, a white coach and teacher, Defendant Ashley Smith, allegedly told Kyana that she was a “bad influence” because she had had a child at the age of seventeen. ( Id. ¶ 17.) Plaintiffs allege that Defendant Smith made this comment in front of other white students but “has never been heard to make such comments to her white students, regardless of what problems or trouble they may have experienced.” ( Id.)

The SAC also describes an incident wherein Justin Farris, fiancé of Defendant Smith, allegedly confronted Plaintiff Lawanda Fennell–Kinney at the Guadalupe County Youth Show in such a “hostile and aggressive manner” that the security guards escorted him from the building. ( Id. ¶ 18.) Plaintiffs allege that Mr. Farris was responding to a Facebook post in which Ms. Fennell–Kinney had described, though without naming Defendant Smith, the comment Smith had made to Kyana about being a “bad influence.” ( Id.) The SAC describes Ms. Fennell–Kinney's fear for Kyana's safety, her meeting a few days later with various school administrators and Defendant Glenn Davis, the administrators' decision that Mr. Farris would not be permitted to attend that night's basketball game, and the decision that Defendant Smith would not coach that game. ( Id.) Several students, including Justin Farris's sister, allegedly “harassed” Kyana the following day. ( Id.)

On February 6, 2012, Ms. Fennell–Kinney allegedly discovered a noose and a racially hostile note next to Kyana's car. The note allegedly said:

Die fuckin “nigger sisters”.... Bitches!!!

You can never bring our families down...

Whites will always rule this town and this school!!!!

Damn spooks!!!!

So go ahead and file your stupid damn complaints and grievances..... NIGGERS and that “Nigger lover” you have a baby with.....

( Id. ¶ 19.) Plaintiffs reported this incident to the Marion ISD police, the Marion Police Department, and eventually the FBI. ( Id.) However, “there were no suspects and no arrests,” because “[t]he video surveillance equipment for the parking lot somehow failed to show any activity around Kyana's car in the relevant time period.” ( Id.) One of the cars parked next to Kyana's car belonged to the same boy who had allegedly called Kyana a “stupid nigger” and who had not been punished by the school. ( Id.) Plaintiffs allege that he was seen staring at Kyana from inside the car before practice and before the noose was found. ( Id.) After the incident, Plaintiffs allege that he “was heard to brag ... that ‘He would love to shake the hand of the person who did it’....” ( Id.) However, “no one was charged with the hate crime.” ( Id.)

Plaintiffs allege that during the spring semester of the 2010–2011 school year, white classmates called Doug Giles, a ward of Plaintiff Lawanda Fennell–Kinney, a “nigger.” ( Id. ¶ 20.) On January 6, 2012, Giles allegedly wrote in a statement that someone had hung a noose by his locker and reported the incident to the athletic director, Defendant Glenn Davis. ( Id.) Defendant Davis allegedly responded to the incident by telling the team to “knock it off.” ( Id.) Plaintiffs allege that the school did not investigate the incident and did not report it to Ms. Fennell–Kinney until February 4, 2012. ( Id.)

Following these incidents, Ms. Fennell–Kinney allegedly filed a Level I grievance with the school district, complaining about the racial harassment from teachers, coaches, administrators, and other students that her children had experienced at the school. ( Id. ¶ 22.)

On April 17, 2012, Kyra's softball team, coached by Defendant Cynthia Manley, had a game in Lulling, Texas. ( Id. ¶ 23.) Plaintiffs allege that the team members were given a form telling them to report to the school at 2:55 pm for a 3:05 pm departure. ( Id.) Kyra, who had signed out of school for lunch that day, allegedly arrived at 2:55 pm to find the bus departing without her. ( Id.) Plaintiffs allege that, although Defendant Manley could see Kyra waving at the stop sign, she refused to stop the bus. ( Id.) Another parent drove Kyra to the game, but Defendant Manley refused to start Kyra, allegedly stating that, because Kyra had signed out of school for lunch on a game day and Manley had not known where she was, she could not start. ( Id.) Ms. Fennell–Kinney took Kyra home, leading Defendant Manley to threaten to officially reprimand Kyra for leaving a game early. ( Id.) As punishment, Manley allegedly made Kyra sit out the next game. ( Id.) Plaintiffs allege that “on several occasions prior to this date, other white softball players had signed out for lunch on game day and had not been disciplined or...