Grace v. Bd. of Trs.

• Decision Date: 25 May 2022
• Docket Number: Civil Action 19-10930-GAO
• Parties: NATASHA GRACE, MINOR CHILD MG, MINOR CHILD MG2, MINOR CHILD MG3, MINOR CHILD AG, MINOR CHILD MP, Plaintiffs, v. BOARD OF TRUSTEES, BROOKE EAST BOSTON, BROOKE SCHOOL FOUNDATION, INC., Defendants.
• Court: U.S. District Court — District of Massachusetts

NATASHA GRACE, MINOR CHILD MG, MINOR CHILD MG2, MINOR CHILD MG3, MINOR CHILD AG, MINOR CHILD MP, Plaintiffs,
v.
BOARD OF TRUSTEES, BROOKE EAST BOSTON, BROOKE SCHOOL FOUNDATION, INC., Defendants.

Civil Action No. 19-10930-GAO

United States District Court, D. Massachusetts

May 25, 2022

REPORTS AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

JUDITH GAIL DEIN UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

This action arises out of alleged incidents of bullying and harassment against the plaintiff, Minor Child MG (“MG”), while he was a student at the Brooke Charter School East Boston (“Brooke East Boston” or “School”) in Boston, Massachusetts. In 2019, after MG's mother, Natasha Grace (“Ms. Grace” or “mother”), withdrew him from the School, MG, his mother, and his four minor siblings filed this action in Massachusetts state court against the School, its Board of Trustees and the Brooke School Foundation, Inc., claiming that the defendants' failure to protect MG from abuse by other students and members of the School's staff, as well as their failure to comply with certain reporting requirements, violated MG's rights under federal and state law, violated Ms. Grace's rights under state law, and caused all the

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plaintiffs to suffer a loss of consortium. By their Complaint (Docket No. 1-2) (“Compl.”), the plaintiffs asserted eighteen claims against the defendants, including claims for violations of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (Count I)^[1]; claims pursuant to 42 U.S.C. § 1983 for the denial of equal protection under the Fourteenth Amendment (Counts II-III); deprivation of equal rights pursuant to the Massachusetts Equal Rights Amendment (“ERA”) and Mass. Gen. Laws ch. 76, § 5 (Count IV); violations of Massachusetts' anti-bullying law, Mass. Gen. Laws ch. 71, § 37O (Count V); negligence (Count VI); negligent infliction of emotional distress (Counts VII-VIII); violation of the state parental notification law, Mass. Gen. Laws ch. 71, § 32A (Count IX); failure to report a threat to personal safety under 603 C.M.R. § 33.00 (Count X); negligent supervision of students (Count XI); negligent hiring, supervision and retention (Count XII); and loss of consortium (Counts XIII-XVIII). On April 23, 2019, the defendants removed the case to this court pursuant to this court's federal question jurisdiction.

The matter is presently before the court on the “Defendants' Motion for Summary Judgment” (Docket No. 44). Therein, the defendants contend that there are no material facts in dispute and that they are entitled to judgment as a matter of law with respect to each Count of the plaintiffs' Complaint. As described below, this court finds that the plaintiffs' claims for violation of Title IX should be resolved by a factfinder at trial, but that the defendants are entitled to summary judgment with respect to the remaining claims. Accordingly, and for all the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the defendants' motion for summary judgment be ALLOWED IN PART and DENIED

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IN PART such that the motion be allowed with respect to Counts II-XVIII but denied with respect to Count I of the Complaint.

II. STATEMENT OF FACTS^[2]

The following facts are undisputed unless otherwise indicated.

The Brooke Charter Schools

The facts giving rise to the instant case occurred during the time period from 2015 through 2018, when MG was attending fourth through sixth grade at Brooke East Boston. The School is part of the Brooke Charter Schools, a network of three high performing K-8 public charter schools and one high school that are located in Boston, Massachusetts. (Def. Ex. D at 6 of 107). All of the campuses are governed by the defendant Board of Trustees and receive fundraising support from defendant Brooke School Foundation, Inc., a nonprofit fundraising entity. (DF ¶¶ 5, 7; PR ¶ 7). The stated mission of the Brooke Charter Schools “is to provide an academically rigorous public education to students from the cities of Boston and Chelsea that will ensure they are prepared to attend and succeed in college.” (Def. Ex. D at 6 of 107).

At the time MG attended the School, Jon Clark (“Mr. Clark”) served as a Co-Director of the Brooke Charter Schools and had overall responsibility for the successful operation of the schools. (DF ¶ 2). Both Mr. Clark and his Co-Director, Kimberly Steadman (“Ms. Steadman”),

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reported directly to the Board of Trustees, while the Principals of each charter school reported to Mr. Clark and Ms. Steadman. (DF ¶ 5; PR ¶ 5). Molly Cole (“Ms. Cole”) served as the Principal of Brooke East Boston and had overall responsibility for the School. (DF ¶ 8; PR ¶ 5). She was assisted by three Assistant Principals and a Dean of Students to whom she delegated certain responsibilities. (DF ¶ 8; PR ¶¶ 5,8). Yasenia Dudley (“Ms. Dudley”), the Dean of Students, had primary responsibility for maintaining and enforcing the School's Code of Conduct. (DF ¶ 9). This included responsibility for investigating complaints of bullying, harassment, and other disciplinary matters, as well as responsibility for disciplining violators. (See Pl. Ex. 4 at 12, 24, 27). According to Ms. Dudley, she received no specific training on investigation procedures prior to or during her employment at Brooke East Boston. (Id. at 1314; PR ¶ 10). Nevertheless, it is undisputed that Ms. Dudley holds a master's degree in mental health counseling and is currently pursuing a doctorate in education. (Def. Ex. B at 9; DF ¶ 10).

The School's Code of Conduct is set forth in the Brooke Charter Schools Student & Family Handbook (“Handbook”), a comprehensive document containing the procedures, policies and practices applicable to grades K-8. (Def. Ex. D at 8-30 of 107). According to the Handbook, the Brooke Charter Schools are “unequivocally committed to providing a safe and orderly environment in which students can maximize their academic achievement.” (Id. at 8 of 107). To that end, students who violate the Code of Conduct may face certain consequences, including but not limited to, a citation known as a “Community Violation,” a referral to the Dean of Discipline, and the loss of privileges, detention, suspension or expulsion. (Id. at 8-12 of 107; Def. Ex. C ¶ 12). The record establishes that MG had disciplinary issues, and received an increasing number of Community Violations and detentions during the three years when he

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was enrolled at Brooke East Boston. (PR ¶ 16; Pl. Ex. 3 at 204-05). The plaintiffs contend that the teachers used subjective criteria to determine whether a student's conduct was inappropriate and had too much discretion in determining what discipline was warranted in the classroom. (See PR ¶¶ 16-17). They also contend that MG's escalating behavioral issues resulted from the School's failure to protect him from bullying and harassment by his peers and certain members of the School's staff. (See PR ¶ 22).

The Handbook includes a “Bullying and Prevention Policy,” which calls on the Principal to create and maintain a “Bullying Prevention Plan” and states, inter alia, that “[t]he school will take specific steps to create a safe, supportive environment for vulnerable populations in the school community, and provide all students with the skills, knowledge, and strategies to prevent or respond to bullying, harassment, or teasing.” (Def. Ex. D at 77-78 of 107; see also PR ¶ 3). The term “bullying,” as used in the Bullying and Prevention Policy, is defined in accordance with the Massachusetts anti-bullying statute, Mass. Gen. Laws ch. 71, § 37O, as follows:

BULLYING, as defined in MGL c. 71, § 37O, is the repeated use by one or more students or by a member of a school staff ... of a written, verbal, or electronic expression or a physical act or gesture or any combination thereof, directed at a target that:

i. causes physical or emotional harm to the target or damages to the target's property;

ii. places the target in reasonable fear of harm to himself or herself or of damage to his or her property;

iii. creates a hostile environment at school for the target;

iv. infringes on the rights of the target at school; or

v. [m]aterially and substantially disrupts the education process or the orderly operation of a school.

(Def. Ex. D at 83 of 107). As detailed below, the plaintiffs claim that MG was bullied while he was in the fourth, fifth and sixth grades at the School.

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During the time when MG was a student at Brooke East Boston, the School had a bullying prevention plan that had been submitted to and approved by the state. (DF ¶ 14; Def. Ex. A at 145). As described above, Ms. Dudley had primary responsibility for investigating complaints of bullying and harassment at the School. She also prepared reports of her investigations, submitted them to the School's Principal or one of the Vice Principals and, depending upon the circumstances, worked with the Principal or Vice Principal to determine a response. (See Pl. Ex. 4 at 27, 29-30, 40-42). The plaintiffs assert that the School's implementation of its bullying prevention plan was inadequate because Ms. Dudley and other members of the School's administration had too much discretion to determine whether a student's conduct constituted bullying and what responses were appropriate. (PR ¶¶ 12, 14).

Alleged Incidents of Bullying During MG's Fourth Grade School Year (2015-2016)

The plaintiffs' claims in this action arise out of incidents that began when MG was in the fourth grade at the School. The first of these incidents began when one of MG's fourth grade classmates, MV, tripped MG during school and MG responded by calling MV “dumb.” (PR ¶ 23). This would prove to be the first of several conflicts between MV and MG during MG's enrollment at Brooke East Boston, and it resulted in MG receiving a Community...