J.S. ex rel. Duck v. Isle of Wight County School, 2:05 CV 76.

• Decision Date: 25 March 2005
• Docket Number: No. 2:05 CV 76.,2:05 CV 76.
• Citation: 362 F.Supp.2d 675
• Parties: J.S., a minor, by his mother and next friend, Sharon DUCK, Plaintiff, v. ISLE OF WIGHT COUNTY SCHOOL BOARD, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

362 F.Supp.2d 675

J.S., a minor, by his mother and next friend, Sharon DUCK, Plaintiff, v. ISLE OF WIGHT COUNTY SCHOOL BOARD, et al., Defendants.

No. 2:05 CV 76.

United States District Court, E.D. Virginia, Norfolk Division.

March 25, 2005.

John W. Hart, Esquire, Virginia Beach, VA, Counsel for Plaintiff.

Kevin J. Cosgrove, Esquire, James R. Theuer, Esquire, Hunton & Williams, Richmond, VA, Counsel for Defendants.

OPINION

REBECCA BEACH SMITH, District Judge.

This case is before the court on plaintiff's Motion for Issuance of a Preliminary Injunction. Because plaintiff has not made a strong showing of irreparable harm, nor demonstrated a likelihood of success on the merits, the motion is DENIED.

I. Factual and Procedural History

On February 7, 2005, plaintiff J.S., a minor, filed a complaint through his mother and next friend Sharon Duck ("Duck"), alleging under 42 U.S.C. § 1983 that defendants violated J.S.'s constitutional rights by suspending him and transferring him to an alternative high school without affording him due process. The complaint also alleges that defendants violated a previous court order and retaliated against J.S. for exercising his civil rights. On February 18, 2005, plaintiff filed a motion for a preliminary injunction, asking that J.S. be readmitted to Windsor High School ("WHS") during the pendency of this litigation. Defendants responded on March 7, 2005, and a hearing was held on March 11, 2005.

Up until January 6, 2005, J.S. was a student in the ninth grade at WHS. Compl. at ¶ 10. J.S. is learning disabled and had an Individualized Education Plan ("IEP") in place. Id. at ¶ 27. On December 7, 2004, J.S. allegedly engaged in inappropriate activity in unauthorized areas at WHS after school hours during a choral performance of the Windsor Middle School. A surveillance camera captured J.S. entering a girls' bathroom with a female student¹ ("Jane Doe") and emerging three to four minutes later. Duck Aff. at ¶ 5b. On December 10, 2004, Jane Doe reported to William Owen ("Owen"), the principal of WHS, that she had been sexually assaulted by J.S. Owen Decl. at ¶ 2. Owen called the WHS Resource Officer, Deputy Sheriff Gwaltney, who then referred the matter to Ann House ("House"), assistant principal of WHS. Defs.' Mem. at 3. House investigated the incident and notified Duck of Jane Doe's allegation. Id. J.S. submitted and signed a written statement, dated December 13, 2004, describing his version of the incident. See Reese Decl. Ex. A.

Following House's investigation, J.S. was suspended from WHS for a period of five school days, beginning December 14, 2004, and ending January 4, 2005. Compl. at ¶ 13. Duck received written notice of the suspension on or about January 3, 2005. Compl Ex. B. Duck was informed in that letter that an administrative hearing must be held before J.S. could be readmitted to school. Id.

On January 4, 2005, J.S., Duck, House, and defendant Ron Reese ("Reese"), the Director of Student Services for the Isle of Wight County Public Schools, met for an "administrative review." According to plaintiff, nothing was discussed at that meeting regarding extending J.S.'s suspension beyond the five days already imposed. Compl. at ¶ 18. On the same day as the administrative review, Jane Doe submitted a written statement in the presence of her parents and Mr. Reese. Reese Decl. Ex. A. This statement contains explicit allegations of sexual activity occurring between J.S. and Jane Doe in the girls' bathroom. J.S. contends that this statement was never made available to him, nor were its contents ever summarized for his benefit. Compl. at ¶¶ 24-25.

On January 6, 2005, Reese informed Duck by letter that he decided to "long-term" J.S.'s suspension, effective January 4, 2005, for the remainder of the first semester of the school year, and that J.S. would be reassigned to New Directions Alternative School ("Alternative School") for the second semester of the school year. Compl. at ¶ 19, Ex. C. According to defendants, Reese determined at the administrative hearing that House had wrongly categorized the incident as "sexual harassment," and that instead it should be characterized as "disruptive behavior." Defs.' Mem. at 3. The offense of "disruptive behavior" warrants greater disciplinary action under the school's code of conduct. Id.² Accordingly, Reese increased J.S.'s punishment. Defendants note that Reese was acting within his authority to increase J.S.'s discipline; in fact, had Reese disagreed with House's suspension and referred the matter back to WHS with a recommendation of increased discipline, Owen would have reviewed the action, and Owen states that he would have imposed the same punishment as Reese did. Owen Decl. ¶ 7. Plaintiff argues that Reese's action was in violation of the school's own policy regarding long-term suspension, which requires that a suspension of ten days be imposed before any longer-term suspension. Compl. at ¶¶ 15, 19.

Duck appealed Reese's decision to the Isle of Wight School Board Disciplinary Committee ("Disciplinary Committee"), and a hearing was held on January 24, 2005, at which J.S. was present and represented by counsel. Plaintiff points to two specific violations of his due process rights that occurred at the hearing. First, plaintiff offered the hallway surveillance videotape as evidence. The Disciplinary Committee did not watch the videotape, despite the fact that there was a TV and VCR present in the room. Compl. at ¶ 22. Second, plaintiff claims (as noted above) that he was not given a copy of the statement made by Jane Doe, nor did anyone summarize verbally what she had said. Compl. at ¶ 24-25. It is not disputed that the members of the Disciplinary Committee were given Jane Doe's statement as part of their evidentiary "packets." See Pl.'s Ex. 4 (Reese's agenda for Disciplinary Committee hearing). At the hearing, the committee decided unanimously to uphold the long-term suspension. As a result, J.S. has been attending the Alternative School rather than WHS.

II. Analysis

A. Standard for Preliminary Injunction

The case of Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir.1977), controls the issuance of preliminary injunctions in the Fourth Circuit. Blackwelder sets out four factors that a court should consider in deciding whether to grant a preliminary injunction: (1) the likelihood of irreparable harm to the plaintiff, if an injunction is denied; (2) the likelihood of harm to the defendant, if the injunction is granted; (3) the likelihood that the plaintiff will succeed on the merits; and (4) the public interest. Id. at 193-96. The first two factors are the most important. Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir.1991). In balancing the likelihood of irreparable harm to the plaintiff and the likelihood of harm to the defendant, as the balance tips away from the plaintiff, a stronger showing on the merits is required. Id.

B. Blackwelder Factors

1. Irreparable Harm

Under Fourth Circuit precedent, the plaintiff must first make a strong showing of irreparable harm, and then the court proceeds to balance the hardships that would result to both plaintiff and defendant. See Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271 (4th Cir.2002). Defendants argue that plaintiff has not made the required showing on irreparable harm, and therefore the court should not even proceed to the balancing stage. The court agrees that plaintiff has not met his burden under Blackwelder of a "strong showing" of irreparable harm.

Plaintiff presented evidence at the hearing, through the testimony of Duck, that the Alternative School is academically inferior to WHS. First, Duck stated that at the Alternative School, students are put into one classroom for each subject; thus, for example, math is taught by one teacher to students from grades nine through twelve. When questioned, Duck was uncertain about the number of students in the classes at the Alternative School, but she stated that it was a higher number than in J.S.'s classes at WHS. Despite the students being grouped together across grade levels, the courses J.S. is taking at the Alternative School are substantially similar, at least in subject matter, to the ones he was enrolled in at WHS. Duck testified that J.S. now takes Algebra, English, Health and Physical Education, and World Geography, the latter of which also serves as his "Resources" class.³ At WHS, J.S. took Algebra, English, Health and Physical Education, Earth Sciences, and Resources. Thus, the only difference in courses is that J.S. now takes World Geography instead of Earth Sciences, and Resources is part of his World Geography class. Defendants deny that there is any difference in educational quality between the two institutions. Defs.' Mem. at 4.

Second, Duck testified that the rules of conduct are stricter at the Alternative School, and that this harms J.S. because he is more likely to get in trouble. For instance, Duck testified that the students at the Alternative School must eat lunch alone every day, not speaking to anyone. Duck also testified that J.S. is required to take the bus to school and that he must sit in the front of the bus and not speak to anyone. Also, the students at the Alternative School are expected to adhere to a dress code requiring them to wear collared shirts and belts every day. J.S. has been disciplined for his failure to comply with these regulations: he received an in-school suspension one day for not wearing a belt.

Third, plaintiff argues that J.S. is harmed by not being able to participate in extracurricular activities at WHS. Because he is banned from school property, he cannot play any sports or do any other extracurricular activities until he is readmitted to WHS. The Alternative School has no extracurricular activities of its own. Duck testified that J.S. played junior varsity football at WHS last fall, and that he wants to play football again in...