L.P. v. Marian Catholic High Sch.

• Decision Date: 29 March 2017
• Docket Number: No. 16-2856,16-2856
• Citation: 852 F.3d 690
• Parties: L.P., by and through his Next Friend, Tenyiah Patterson, et al., Plaintiffs-Appellants, v. MARIAN CATHOLIC HIGH SCHOOL, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

852 F.3d 690

L.P., by and through his Next Friend, Tenyiah Patterson, et al., Plaintiffs-Appellants,

v.MARIAN CATHOLIC HIGH SCHOOL, et al., Defendants-Appellees.

No. 16-2856

United States Court of Appeals, Seventh Circuit.

Argued January 18, 2017

Decided March 29, 2017

Mary Johanna Grieb, Attorney, Shiller Preyar, Chicago, IL, for Plaintiffs–Appellants.

Andrew Kopon, Jr., Attorney, Kopon Airdo LLC, Chicago, IL, D. Faye Caldwell, Attorney, Caldwell Everson PLLC, Houston, TX, for Defendants–Appellees.

Before Wood, Chief Judge, and Posner and Hamilton, Circuit Judges.

Wood, Chief Judge.

Marian Catholic High School has a policy of subjecting its students to random drug tests. Although it is run by the Catholic Archdiocese of Chicago, it receives federal funds to cover the cost of this program. Students who test positive for illegal drugs are subject to a range of sanctions, from counseling to expulsion.

The plaintiffs in this case are seven Marian students who received false positive results in the school-ordered tests. Six of them are African-American, and one is White. They have sued because they believe that the drug-testing program is being run in a way that discriminates against them on the basis of their race, in violation of both the Constitution and various federal statutes. The district court dismissed the complaint for failure to state a claim, and later, after plaintiffs passed up the opportunity to file an amended complaint, dismissed the action with prejudice. Our own review of the complaint reveals nothing that would support a claim of racial discrimination or a violation of any of the statutes plaintiffs invoke. We therefore affirm.

I

Because of the procedural posture of the case, the account of the facts that follows takes them in the light most favorable to the plaintiffs. Like many high schools, Marian, which is owned and operated by the Dominican Sisters, strives to maintain a drug-free environment for its students. One mechanism it uses is random drug testing. Its methodology involves taking a hair sample from the student to be tested and sending the sample for analysis to a company called Omega Laboratories. Joanna Drackert, a guidance counselor, was responsible for running the program at the time of the events giving rise to this suit. Over the course of a school year, every student at Marian is tested at least once.

Marian is registered with the Illinois State Board of Education and operates in Cook County, Illinois. In connection with its registration, it makes a commitment to comply with all nondiscrimination laws. It also receives various benefits from the state, including recognition of its programs for purposes of participating in interscholastic sports and contests and recognition of its credentials for the purpose of admission to college, post-secondary, training, and military programs. In 2008, Marian was awarded a federal grant of $84,110 for a school-based drug-testing program; in 2009 it received $149,831 for similar purposes; in 2010 it received $84,878; and in 2011 it received $7,233. All students enter into "contracts" with Marian at the time they are admitted; in those contracts, they agree to participate in the drug-testing program. (No one makes anything of these supposed contracts, and so we need not consider whether they are formally binding on minors.)

The first plaintiff, I.J., had a hair test analyzed by Omega in September 2015. The results were positive for cocaine and benzoylecgonine. (Benzoylecgonine is the main metabolite of cocaine. See What is benzoylecgonine , REFERENCE , at https://www.reference.com/health/benzoylecgonine-811a983d6e2cdadd (last visited Mar. 29, 2017) . Most of the Omega tests we describe below revealed both substances, but for the sake of brevity, we refer from this point onward only to cocaine.) Two weeks after providing the sample given to Omega, and just four days after receiving the positive results, I.J. voluntarily underwent a test administered by Dr. Wilburn of Back to Health Chiropractic. The latter test was evaluated by Quest Diagnostics, which found I.J.'s hair and urine to be free of any illegal substances. Although Marian wanted I.J. to undergo further drug tests, it appears that I.J. is still at the school.

On October 26, 2015, plaintiff J.B. was selected for a random drug test. Omega reported that J.B.'s hair had tested positive for cocaine, and so Drackert pulled J.B. out of class on November 5 to inform him of this fact. Drackert questioned J.B. for about an hour about this, and she accused J.B.'s parents of being drug dealers. She also telephoned his parents and told them about the test results. On November 6, he voluntarily submitted to a urine drug test performed by the Franciscan Physician network. That test came back negative for any illegal substances. A few days later, he voluntarily participated in a second test, which was conducted by Dr. Wilburn and evaluated by Quest. The second test confirmed the results of the Franciscan test. Drackert refused to admit that there had been any problem with the Omega results: on November 23, she stopped J.B. in the hallway and announced (within the hearing of others) that he was still a drug user and that the later test results just meant that the substance(s) had worked their way out of his system.

The outcome for plaintiff J.H. was less favorable. J.H. submitted to two hair tests through Marian in the fall of 2014; Omega found that both were positive for cocaine. Another one in January 2015, also ordered by Marian, was positive for cocaine, although apparently at a lower level. J.H. had one final school-ordered test on March 4, 2015, which was also positive. Five days later, Marian required him to withdraw from the school, in accordance with its substance abuse program. On March 23, his hair was evaluated by Quest, in a test administered by Dr. Wilburn; the results came back negative for both substances.

L.P.'s problems began with a complaint from the school about hair style. On October 21, 2014, L.P.'s hair was tested, but Drackert complained to L.P.'s parents that L.P.'s hair style was interfering with the test, and that if L.P. did not change the style, L.P. would need to undergo four additional drug tests over the next six weeks. Once again, tests conducted by Omega returned positive results for cocaine, and outside tests (this time Advocate Healthcare) were negative. In response, Drackert wrote L.P.'s parents informing them about the results and advising them that L.P. and perhaps his family needed to participate in a substance abuse program. The letter warned that any additional positive drug tests could result in L.P.'s dismissal from the school. After the negative test results from Advocate arrived, L.P.'s parents met with Drackert to discuss the inconsistencies between the tests. During the meeting, Drackert insisted that L.P. was using illegal drugs; L.P. denied the charge. L.P.'s parents complained to Marian about Drackert, but to no avail. L.P. underwent further drug testing in 2015. The pattern of positive results from Omega and negative results from Advocate continued, and in late September 2015 L.P. was forced to withdraw from Marian.

Plaintiff C.C. has been tested repeatedly for drugs—an average of three times per year. Before 2016, he had passed nine tests ordered by Marian. C.C.'s earlier tests used hair from his leg; they were negative. On January 25, 2016, however, Marian used a sample of hair from his head. At that time, C.C. was wearing his hair in an "afro" style, and portions of his hair were dyed blond. His mother noticed that an unusually large sample of hair had been taken. The January test came back from Omega as positive for cocaine, although C.C. did not use cocaine. C.C.'s mother promptly took him to the University of Chicago for a urine drug test, which came back negative for everything. His mother also went with him to Marian to demand a re-test. Both Marian and Quest took samples of his hair on February 9, 2016; the Marian sample came back positive, and the Quest sample came back negative.

The last of the African-American plaintiffs is J.R., who was tested by Omega in October 2014. At the time of that test, he was wearing his hair in dreadlocks. His test came back positive for cocaine, and so the school compelled him to attend drug counseling classes despite his denial of any involvement with that drug. He, too, was retested—in his case by Redwood Toxicology Laboratory—and the result was negative. Drackert nonetheless accused both J.R. and his family of having drugs at home.

The seventh and final plaintiff is Shane Ratkovich, the only White student in the group. Like his fellow classmates, Ratkovich was given a test and received a false positive from Omega. He followed up with a test from Quest, which was negative. Shortly thereafter, he was tested again by Omega, which again reported positive results (as usual, for cocaine). Without giving Ratkovich an opportunity to contest the Omega results, Marian expelled him from school at the end of his junior year.

After reviewing these allegations carefully, the district court concluded that they did not portray a plausible account of race discrimination. The complaint did not allege that the hair testing had a racially disproportionate impact, either because of anything identifiable about different hair types, or because of differences in technology used or sample processing. It also did not allege that Omega knew the race of the person whose hair it was testing. Moreover, for purposes of the count against Drackert under 42 U.S.C. § 1983, the court found nothing in the allegations indicating that she was a state actor. The fact that the school receives federal funds did not transform either the school or its employees into state actors. See Rendell-Baker v. Kohn , 457 U.S. 830, 840–42, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). The claims under 42 U.S.C. § 1981 and Title VI of the Civil Rights Act of 1964 failed for lack of...