J.K. v. Minneapolis Pub. Sch.

• Decision Date: 29 July 2011
• Docket Number: Case No. 11–CV–1322 PJS/JJK.
• Citation: 849 F.Supp.2d 865,282 Ed. Law Rep. 897
• Parties: J.K., a minor child, by and through his parents and natural guardians, Donald KAPLAN and Thea Lucille Nelson, Plaintiffs, v. MINNEAPOLIS PUBLIC SCHOOLS (SPECIAL SCHOOL DISTRICT NO. 1); William Smith Jr., Principal; Chul Schwanke, Social Worker; and Theresa Battle, Associate Superintendent, individually and in their official capacities, Defendants.
• Court: U.S. District Court — District of Minnesota

849 F.Supp.2d 865

282 Ed. Law Rep. 897

J.K., a minor child, by and through his parents and natural guardians, Donald KAPLAN and Thea Lucille Nelson, Plaintiffs,

v.MINNEAPOLIS PUBLIC SCHOOLS (SPECIAL SCHOOL DISTRICT NO. 1); William Smith Jr., Principal; Chul Schwanke, Social Worker; and Theresa Battle, Associate Superintendent, individually and in their official capacities, Defendants.

Case No. 11–CV–1322 PJS/JJK.

United States District Court, D. Minnesota.

July 29, 2011.

Atlee M. Reilly and Amy J. Goetz, School Law Center, LLC, for plaintiffs.

Margaret A. Skelton and Matthew J. Bialick, Ratwik, Roszak & Maloney, P.A., for defendants.

PATRICK J. SCHILTZ, District Judge.

Plaintiff J.K. will begin his senior year of high school this fall. He attended Southwest High School (“Southwest”) in Minneapolis for the past three years and would like to graduate from it. But defendant Minneapolis Public Schools (“the District”) has barred J.K. from attending Southwest because of misconduct that he allegedly committed near the end of his junior year. The District has informed J.K. that he will be transferred to another high school within the District. J.K. moves for a preliminary injunction ordering the District to permit him to attend Southwest for the upcoming year. For the reasons that follow, the Court denies J.K.'s motion.

I. BACKGROUND ¹

Plaintiff J.K. has been an exemplary student at Southwest. He has been on the honor roll, has participated in various extracurricular activities, and—until the events underlying this lawsuit—was not subject to any disciplinary action by the school. Compl. ¶¶ 20–26 [Docket No. 1].

Of particular relevance to this case, J.K. has played on the school's basketball and baseball teams for the past three years. During the just-completed 2010–2011 school year, J.K. was a member of the varsity squads of both the baseball and basketball teams, and his coaches selected him to be a co-captain of the basketball team during the upcoming 2011–2012 school year. Id. ¶ 25.

This case arises out of an incident that took place in March 2011, while the baseball team was in Florida for a spring-training trip. According to J.K., one night at the team hotel, while he was innocently wrestling with a teammate named J.O., another teammate named B.S. suddenly and unexpectedly exposed his genitals above J.O.'s face.² J.K. immediately released J.O. J.K. says that B.S.'s behavior took J.K. by surprise, and that J.K. did not plan, encourage, or condone the incident. Id. ¶ 30. J.K. says that he was subjected to a similar act, and that J.O. subjected another student to a similar act. Id. ¶ 31.

According to the District, however, J.K.'s account of the incident is inaccurate in many respects.

Defendant William Smith Jr., Southwest's principal, learned in late April 2011 that J.O. had been the victim of some type of harassment during the baseball team's trip to Florida in March.³ Smith asked a school social worker, Connie Overhue, to investigate. Overhue Aff. ¶ 3; Smith Aff. ¶ 5.

Overhue met with J.O. on April 25, 2011. J.O. told Overhue that he had been teased about his height during the Florida trip but otherwise had not been harassed. Overhue Aff. ¶ 3. The next day, Overhue met with two of J.O.'s friends. One friend—a girl who had not been on the trip—said that J.O. had called her from Florida and had sounded upset when they talked. The girl also told Overhue that after the team had returned to school, she heard rumors that a baseball player had put his testicles in J.O.'s mouth, and she saw a baseball player put J.O. in a trash can. Id. ¶ 4. The second friend—a boy on the baseball team—confirmed that other players had teased J.O. about his height during the Florida trip. The boy also told Overhue that other players had told him that a teammate had rubbed his testicles on J.O.'s face. The boy wept while talking to Overhue, apparently because he regretted not doing anything to help J.O. Id.

Overhue met with J.O. for a second time the next day. She asked J.O. specifically about an “incident involving male genitalia,” and J.O. began to cry. J.O. said that he was not a “snitch” or a “traitor” and that he did not want to talk because he feared retaliation. But J.O. agreed to signal, by nodding, whether specific individuals were involved in the incident. J.O. indicated that J.K. and B.S. were involved; he indicated that two other students whose names had come up were not involved. Id. ¶ 5; id. Ex. 1 at 2.

Overhue reported her findings to Smith, who interviewed J.O. the same day. In response to a question from Smith, J.O. said that J.K. had held him down against his will, while B.O. had rubbed his testicles in J.O.'s face. Smith Aff. ¶ 7.

Smith then interviewed B.S., who confirmed J.O.'s story. According to B.S., when he, J.K., and J.O., were alone in a hotel room, J.K. held J.O. down while B.S. rubbed his testicles on J.O.'s face. Id. ¶ 8. B.S. “acknowledged that [J.K.] did not like it, but stated that it ‘was no big deal.’ ” Id.

Smith, together with Southwest's athletic director, Ryan Lamberty, then interviewed J.K. J.K. gave more-or-less the same account of events that he gives in this lawsuit: J.K. and J.O. were wrestling, J.O. fell on the floor, and B.S. waved his testicles over J.O.'s face. Smith Aff. ¶ 9; id. Ex. 3 at 2. J.K. told Smith and Lamberty that he, B.S., and J.O. were all laughing and playing around and that J.O. was “okay” with what happened. Smith Aff. Ex. 3 at 2.

Smith suspended J.K. for five days beginning on April 27, 2011, pending further investigation and a decision about expulsion. (Smith also took disciplinary action against B.S.) Smith met with J.K.'s father later that day for about three hours. Smith Aff. ¶ 10.

The next day, Smith recommended to defendant Chul Schwanke that J.K. be expelled. Id. ¶ 12. Schwanke is a social worker employed by the District and is responsible for making decisions about expulsion. Id.; Schwanke Aff. ¶ 1–2.

Schwanke followed up by interviewing the parents of J.K. and B.S. Schwanke Aff. ¶ 2. The parents told Schwanke that the incident involving J.K., B.S., and J.O. was not an isolated event; rather, it was but one of several similar events that happened during the baseball team's Florida trip. Schwanke then decided, after consulting his colleagues, to hire an outside attorney to investigate the incident further. Id. ¶ 3.

The District hired Jeffrey Hassan, a local attorney, to investigate. Id. Hassan reviewed Smith's and Overhue's written reports of their interviews with J.O., J.K., B.S., and other students. Schwanke Aff. Ex. 1 at 2. Hassan then interviewed four school employees: Smith; Overhue; Lamberty; and Jared Mountain, the baseball coach. Id. at 2–13. Hassan also interviewed numerous students, although he did not interview J.O. because his parents did not make J.O. available. Id. at 2. Hassan interviewed J.K. in the presence of his parents and an attorney for J.K. Id. at 13. Hassan interviewed B.S. in the presence of his father. Id. at 21. Hassan also interviewed four other students (three baseball players and the female friend of J.O.'s who had spoken with Overhue in April).

The accounts that B.S. and J.K. gave to Hassan of the incident were consistent with the accounts that they had given to Smith. See id. at 13–16 (report of J.K. interview), 21–22 (report of B.S. interview). But B.S. provided an important additional detail about the incident. He said that while J.O. was showering, B.S. and J.K. planned what they were going to do to J.O. And, pursuant to that plan, after J.O. got dressed and sat on a hotel bed next to J.K., J.K. grabbed J.O. and held him down to enable B.S. to place his testicles near J.O.'s face. Id. at 21.

Hassan summarized his findings in a report dated May 17, 2011. Based on his investigation, Hassan concluded that it was more likely than not that B.S. had “engaged in an act that meets the definition of a sexual assault, bullying, and hazing.” Id. at 23. Hassan also concluded that it was more likely than not that J.K. “was an accomplice to the sexual assault, bullying and hazing.” Id. Moreover, Hassan found that—as some parents and students had alleged—the conduct of B.S. and J.K. toward J.O. “was part of a pattern of hazing behavior engaged in by many, if not most, of the members of the [Southwest] baseball team.” Id. at 24.

The District's policy about student-on-student sexual assault requires only that a school report the assault to the appropriate authorities, which Southwest did. See Minneapolis Pub. Sch. Policy 5636 (Jan. 29, 2002), available at http:// policy. mpls. k 12. mn. us/ uploads/ 5636. pdf; Schwanke Aff. Ex. 1 at 22. But under the District's anti-bullying and anti-hazing policy, the District must “discipline or take appropriate action against any student ... who is found to have violated” the policy. Minneapolis Pub. Sch. Policy 5201 § II.K (eff. date May 28, 2008), available at http:// policy. mpls. k 12. mn. us/ uploads/ 5201_ Policy. pdf. Any discipline imposed under Policy 5201 must “be consistent with the requirements of ... applicable statutory authority, including the Minnesota Pupil Fair Dismissal Act, school district policies and regulations.” Id. A related regulation specifies that the District's “action or intervention” for bullying or hazing may include, among other things:

a. restorative process,

b. referral to counseling,

c. conferencing,

d. warning,

e. suspension,

f. exclusion,

g. expulsion,

h. transfer,

i. remediation,

j. termination or discharge.

Minneapolis Pub. Sch. Reg. 5201A § IV.A.1 (eff. date May 28, 2008), available at http:// policy. mpls. k 12. mn. us/ uploads/ 5201_ A_ Regulation. pdf.

Schwanke decided, after reviewing Hassan's report and consulting with defendant Theresa Battle (an associate superintendent within the District), that expelling J.K. would be too harsh. Schwanke Aff. ¶ 8. Instead, the District decided, “based upon concern for [J.O.],” to “administratively transfer”...