M R v. Burlington Area Sch. Dist.
| Decision Date | 17 May 2023 |
| Docket Number | 21-CV-1284-JPS |
| Parties | M.R. and L.H., minors, individually, by and through their parent, DARNISHA GARBADE, Plaintiffs, v. BURLINGTON AREA SCHOOL DISTRICT and SCOTT SCHIMMEL, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
J. P Stadtmueller U.S. District Judge
On November 5, 2021, Plaintiffs M.R. and L.H., minors individually, by and through their parent, Darnisha Garbade (“Garbade” and collectively, “Plaintiffs”), filed a complaint alleging violations of 42 U.S.C. § 2000d et. seq. and the Fourteenth Amendment. ECF No. 1 at 4. On March 17, 2023, Defendants Burlington Area School District (“BASD”) and Scott Schimmel (“Schimmel”) (collectively, “Defendants”) filed a proposed renewed motion for summary judgment. ECF No. 122.[1]
For the reasons discussed herein, the Court will grant in part and deny in part the motion.
2.1 Appropriate Facts for Consideration
Before the Court relays the facts, it must first address a procedural dispute raised by the parties during depositions and recorded in their agreed upon statement of facts. See generally ECF No. 123. Indeed, that filing is riddled with over 50 footnotes identifying where and how the dispute applies.
Specifically, the parties dispute whether the Court may consider an undisputed fact which is supported only by inadmissible evidence. See, e.g., ECF No. 123 at 7, nn.2-3. The parties particularly contest the admissibility of evidence supporting many of their undisputed facts on grounds of hearsay and lack of foundation. Plaintiffs assert that such facts may be considered on summary judgment because they “could later be presented in an admissible form.” Id. at 7, n.3 (quoting Perez v. Reitz, No. 3:20-CV-946 DRL-MGG, 2022 U.S. Dist. LEXIS 177250, at *4-5 (N.D. Ind. Sept. 29, 2022)).
Critically, however, Plaintiffs fail to explain in what admissible form these facts could later be presented.
At this juncture, the Court will not consider those facts which are properly objected to as being supported solely by inadmissible evidence. “[A] court may consider only admissible evidence in assessing a motion for summary judgment.” Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). Nor is inadmissible evidence sufficient to overcome summary judgment. Haywood v. Lucent Techs., Inc., 323 F.3d 524, 533 (7th Cir. 2003). It is not sufficient to merely assert that a fact may later be presented in an admissible form of some undisclosed kind. Instead, the burden is on the proponent of the fact and its supporting evidence to “explain the admissible form that is anticipated.” Fed.R.Civ.P. 56, Committee Notes on Rules-2010 Amendment. Plaintiffs have not done so. Accordingly, the Court will disregard such facts.
2.2 Introductory Facts
Garbade is the mother of M.R. and L.H., who are African American girls. M.R. and L.H. first enrolled in school in BASD at ages seven and eleven, respectively. Garbade removed M.R. and L.H. from BASD in summer 2020, when they were twelve (seventh grade) and sixteen (tenth grade), respectively. BASD includes Winkler Elementary School (“Winkler”), Dyer Intermediate (“Dyer”), Karcher Middle School (“Karcher”), and Burlington High School (“BHS”). Connie Zinnen (“Zinnen”), a Caucasian woman, was the District Compliance Officer for BASD during the relevant period.
2.3 M.R.'s Experience at Winkler
M.R. began her attendance in BASD at Winkler for fourth grade during the 2017-2018 school year. During that time, Jacqueline Syens (“Syens”), a Caucasian woman, was Winkler's principal.
In October 2017, M.R. brought an orange, black, and clear plastic airsoft toy gun to school. She kept it in her backpack for most of the day but removed it at recess and on the bus after school to show people. The bus driver took the airsoft toy gun away from M.R., and an employee of the bus company spoke to Syens about the incident the following day. That bus employee erroneously informed Syens that M.R. had a BB gun on the bus. The school secretary also informed Syens that parents on Facebook were concerned about a student having a BB gun on the bus.
Syens believed she needed to address the parents' concerns. On October 5, 2017, Syens sent the following email to staff and parents:
Syens sent this email without having taken any additional steps to corroborate what she had been told-specifically, that M.R. had a BB gun- because she believed what the bus employee told her and did not think the bus employee would make something up.
Following Syens' email, M.R.'s reputation at Winkler was ruined. Students and parents came to know that it was M.R. who was involved, and students stopped talking to M.R. at school. M.R. also had to receive counseling after the incident.
The day after the airsoft toy gun was removed on the school bus, Syens called M.R. into her office and interrogated her about whether she was going to shoot up the school. M.R. insisted that she wasn't and believed that Syens was trying to coerce her to say that she was. This upset M.R., who believed that if she were not Black, Syens would not have interrogated her that way. Although M.R. referred to the airsoft toy gun as a “toy gun” during this conversation, Syens referred to it as a BB gun, and M.R. did not recall correcting her. Syens kept M.R. in her office the entire school day.
M.R. admitted to Syens that she brought the toy gun to school and had it out during recess and on the bus. Syens learned from a student that M.R. had the gun out at recess and was pretending to shoot at a student. The three total students that Syens spoke to about the incident told her that they were not frightened by it.
Syens told M.R. a story about a “black boy who was shot and killed by the police for having a toy gun, and they mistaken [sic] it for a real gun.” As a result of their conversation, Syens realized that M.R. had no intention of harming anyone. M.R. was asked to remain in Syens' office while Syens left to call Garbade. Syens told Garbade that M.R. had brought a BB gun to school and that Garbade needed to pick M.R. up right away. When Garbade arrived to pick M.R. up, M.R. was shaking and had been crying.
Later, at a meeting between Garbade and Superintendent Peter Smet (“Smet”), Smet realized the gun was just an airsoft toy gun. Garbade told Smet that Syens' reaction to the situation was racist. According to Garbade, Smet apologized to her “for the bigotry.” Garbade requested a public apology from Smet, a retraction of the email misidentifying the airsoft toy gun as a BB gun, and a follow-up email clarifying the situation. Smet agreed to set up a meeting with Garbade and Syens.
Garbade later met with Syens and Smet. Syens refused to apologize to M.R. and said she stood by her actions. Smet ultimately apologized on Syens' behalf during the meeting. During the meeting, Syens acknowledged that she had told M.R. about a Black child with a toy gun who was killed by police. Syens conceded that she would not have told the same story to a white student. Although she refused to apologize, Syens sent out a clarification email after learning that it was a toy airsoft gun.
M.R. was suspended for one day for bringing the airsoft toy gun to school. Syens asserted this was because M.R.'s actions violated the school's policy of not bringing weapons or toy weapons to school.
Comparatively, there had been an incident prior to the 2017-2018 school year in which a student realized he had left a knife in his backpack from Boy Scouts. When he realized this in the morning, the teacher took him to the office, and staff held on to the knife. According to Syens, no similar email was sent to parents about the incident because the boy realized he had the knife before school had started, he did not take it out to show other students, and he immediately notified his teacher. The student was not disciplined, but his parents and the then-superintendent of BASD were informed.
There were additional incidents in other BASD schools during the 2017-2018 school year in which students brought weapons to school and were disciplined. In 2017, a student at another elementary school in BASD was suspended after bringing a knife to school. In 2018, a student at a different BASD elementary school received a detention for the same conduct. Also in 2018, a student at Dyer was suspended, referred to police, and had his bussing route changed after bringing a hunting knife to school. And a BHS student in 2018 received two days' suspension after a hunting rifle was found in his car.
In 2019, two Dyer...
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