I.G. v. Jefferson Cnty. Sch. Dist. Through the Bd. of Educ. for the Jefferson Cnty. Sch. Dist.

• Decision Date: 07 April 2020
• Docket Number: Civil Action No. 18-cv-03265-PAB-KLM
• Citation: 452 F.Supp.3d 989
• Parties: I.G., BY AND THROUGH her parent and guardian, Gabriel GRUNSPAN, and Gabriel Grunspan for himself, Plaintiffs, v. JEFFERSON COUNTY SCHOOL DISTRICT THROUGH the BOARD OF EDUCATION FOR the JEFFERSON COUNTY SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — District of Colorado

452 F.Supp.3d 989

I.G., BY AND THROUGH her parent and guardian, Gabriel GRUNSPAN, and Gabriel Grunspan for himself, Plaintiffs,

v.JEFFERSON COUNTY SCHOOL DISTRICT THROUGH the BOARD OF EDUCATION FOR the JEFFERSON COUNTY SCHOOL DISTRICT, Defendant.

Civil Action No. 18-cv-03265-PAB-KLM

United States District Court, D. Colorado.

Signed April 7, 2020

William Sidney Finger, Finger Law P.C., Evergreen, CO, for Plaintiffs.

Elizabeth Spellmire Francis, Caplan & Earnest LLC, Boulder, CO, for Defendant.

ORDER

PHILIP A. BRIMMER, Chief United States District Judge

This matter is before the Court on defendant's Motion to Dismiss Plaintiffs' First Amended Complaint and Jury Demand [Docket No. 51]. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1367.

I. BACKGROUND¹

This dispute involves an alleged anti-Semitic environment at West Jefferson Middle School ("the School"), a middle school located in Jefferson County, Colorado within the Jefferson County School District ("the District"), and the actions that the School, the District, and the Jefferson County School District Board of Education ("the Board") took to remedy that environment. See Docket No. 49 at 2, ¶ 4. The Board is the governing body of the District and, therefore, of the School. Id.

Plaintiffs are a former student at the School, I.G.,² and her father, Gabriel Grunspan. Id. at 2, ¶¶ 3-4. Mr. Grunspan is Jewish. Id. , ¶ 3. I.G. identifies as Jewish and went to Israel for her bat mitzvah ceremony. Id.

The anti-Semitic activity began in the summer of 2016 when a swastika was painted on a wall of the School. Id. at 3, ¶ 8. Rather than reporting the swastika to law enforcement or to students and parents, the School painted over the swastika. Id. In September 2016, a student drew a swastika and wrote "Heil Hitler" on a piece of paper, which the student then gave to another student. Id. at 4, ¶ 9. A teacher discovered the note and reported it to the assistant principal. Id. The student's parents were contacted and the student was given a "one-day, in-school suspension." Id. No other actions were taken, despite the fact that "students were going through the hallways giving each other Nazi salutes and saying ‘Heil Hitler.’ " Id.

During a technology class on or about September 27, 2016, a student told a Jewish student that a cookie and a Jew were similar, "with the difference being that a cookie comes out of the oven." Id. , ¶ 10. The student proceeded to give a Nazi salute and loudly state "Heil Hitler." Id. The technology teacher did not report the events to school administration. Id. at 5, ¶ 12. The student, however, did. Id. , ¶ 13. Even though the student reported the incident to school administration, and had experienced anti-Semitic statements on three other occasions, the School did not notify the student's parents that their child had experienced anti-Semitic harassment. Id. at 4-5, ¶¶ 11, 13. The student who made the comments was given a "one-day, in-school suspension," and the principal met with the student's parents. Id. at 5, ¶ 13. No other action was taken. Id.

During class on September 29, 2016, a student told I.G. "that the Zika virus should be eradicated by gassing it, like the Jews." Id. at 6, ¶ 15. During the next period, the same student made the same comment to I.G., and also gave a Nazi salute. Id. , ¶ 16. The teacher for that class told I.G. "that she and the other student who experience [ ] anti-Semitic statement[s] should stick together and that [I.G.] should take the student under her wing because both were Jewish." Id. , ¶ 17. While "[t]his statement clearly showed that the teacher knew that anti-Semitic activity was occurring," the teacher "did not report the obvious racism and anti-Semitic activity." Id. at 6-7, ¶ 17. I.G. reported the anti-Semitic behavior and the teacher's comment to the principal the same day. Id. at 7, ¶ 18. An investigator from the District had a "brief conversation" with I.G., but the District did not take immediate steps to stop anti-Semitic behavior at the School. Id. at ¶ 19.

The School principal interviewed several students who corroborated that comments were made to I.G. Id. , ¶ 20. Those students also confirmed that anti-Semitic activity had been "going on for a considerable period of time and that lots of people (students) were doing it." Id. The student who made the comments to I.G. was given a "two-day, out-of-school suspension," although plaintiffs were never informed of any disciplinary action. Id. , ¶ 21. I.G. also experienced sexual harassment after reporting the September 29 incident; a male student "grabbed [I.G.] from behind" and commented on I.G. reporting to the principal that she experienced anti-Semitic harassment. Id. at 9, ¶ 25.

From September through the remainder of 2016, students at the School "were giving Nazi salutes and verbally stating ‘Heil Hitler’ as they walked through the halls during class breaks." Id. at 6, ¶ 14. "[A]lthough teachers routinely were in the hallways during these breaks," the activity "went unreported for a substantial period of time." Id. The School administration "did not hold any meetings with teachers and other staff to tell them to be aware of potential anti-Semitic activity or how to address it....Parents of student[s] were not informed about the problem at the school and parents were not asked to help remediate the situation." Id. at 8, ¶ 23. At some point during this period, Mr. Grunspan filed a complaint with the Department of Education, Office of Civil Rights division ("OCR"). Id. at 19, ¶ 66.

After I.G. made her complaint to the principal on September 29, 2016, Mr. Grunspan went to the School to discuss the situation. Id. at 9, ¶ 26. When he came back to the parking lot, he discovered three swastikas scratched into the side of his car. Id. On October 12, 2016, R. Craig Hess, the Chief Legal Counsel for the District, informed Mr. Grunspan that there was "merit to the Grunspan complaint that [I.G.] had been subjected to anti-Semitic comments. Mr. Hess' letter also claims that the principal had taken corrective action against the students and the school and would further conduct a school-wide educational program on anti-bullying and tolerance." Id. at 11, ¶ 38. Despite these assurances, I.G. "was still being targeted and harassed and treated unfairly," and Mr. Grunspan was not given any more information on whether these programs were being put into effect. Id. at 12-13, ¶¶ 39-41.

On December 21, 2016, the District put Mr. Grunspan on a "communication plan." Id. at 12-13, ¶ 41. The plan

was that: 1) for concerns relating to West Jeff Middle School staff, Mr. Grunspan would have to e-mail or call Craig Hess, the attorney for the District; 2) [f]or school or district issues involving [I.G.], Mr. Grunspan was only to communicate with Becky Brown, the principal[,] or Mr. Cohan. Additionally, if Mr. Grunspan needed to meet with a West Jeff Middle School teacher, he had to make arrangements for such through Becky Brown or Mr. Cohan; and 3) [f]or GT or testing issues for [I.G.], Mr. Grunspan was required to contact Roger Dowd, the GT Director.

Id. at 13, ¶ 42. Additionally, "[a]t an unknown date, which was before January 13, 2016, teachers and other personnel...were verbally given instructions...not to have direct communications with Mr. Grunspan without clearing them with the principal." Id. , ¶ 43.³ Mr. Grunspan was informed that the communication plan "was tied directly to the fact that OCR was investigating" the District. Id. at 17, ¶ 55. The bar on communications "interfered with the ability of Mr. Grunspan to monitor his daughter's progress in school, to determine what problems existed that [I.G.] was facing and how she was recovering from [her] emotional trauma." Id. at 13, ¶ 44. While the communication plan was in effect, I.G. was receiving counseling from the school counselor "for the emotional trauma" that she was experiencing. Id. at 14, ¶ 45.

On January 12, 2016,⁴ I.G. gave a presentation to the Board "about the abuse and anti-Semitism that was occurring at [the School] and the administration's lack of sensitivity to the problem." Id. at 15, ¶ 50. In the months after I.G.'s presentation, "other anti-Semitic activity in Jefferson County public schools was reported." Id. at 15-16, ¶ 52. On January 19, 2017, at a meeting with school staff and teachers, Principal Brown "openly and overtly attacked [I.G.] for her outcry at the Board of Education....Principal Brown claimed that [I.G.] had made untrue and false statements to" the Board. Id. at 17, ¶ 56.

"From December 2016 through February 2017," teachers were "uncooperative and not supportive relating to assignments and mentoring" of I.G. Id. at 18, ¶ 58. The principal became "openly hostile and confrontational" with I.G. and "attempted to learn about and invade confidential communications" between I.G. and the school counselor. Id. The principal "also engaged in conduct with a radio transmission that ...disclos[ed] that [I.G.] was in counseling or seeing a counselor." Id. The School "refused or failed to transmit" I.G.'s transcripts "to several private schools to which" I.G. was applying for admission. Id. , ¶ 59. In March, 2017, I.G. transferred out of the District school system. Id. , ¶ 61.

Plaintiffs filed this lawsuit on December 19, 2018. Docket No. 1. Plaintiffs bring four claims for relief: (1) national origin and religious discrimination in violation of Title VI; (2) retaliation in violation of Title VI; (3) retaliation in violation of 42 U.S.C. § 1983 ; and (4) promissory estoppel based on statements contained in the School student handbook. Docket No. 49 at 20-26.

Defendant filed its motion to dismiss on July 12, 2019. See Docket No. 51. As to all of Mr. Grunspan's claims, defendant argues that Mr. Grunspan does not have prudential standing to assert the claims because they are either derivative of I.G.'s claims or because he is not in the zone of interests that the statutes are designed to protect. Id. at 6-8....