MARTIN L. KING, SCH. CHILD. v. MICH. BD. OF ED.
| Decision Date | 29 December 1978 |
| Docket Number | Civ. A. No. 7-71861. |
| Parties | MARTIN LUTHER KING JUNIOR ELEMENTARY SCHOOL CHILDREN residing in the Green Road Housing Project, and those at that scattered site, low income project who are or will be eligible to attend that Ann Arbor School, including, Michael, Anthony, Gerard and Tyrone Blair, children of Annie Blair, Temkca S., Charmin, Roy, and Elisha Brownlee, children of Carrie Brownlee, Dwayne Kihilee, and Tito Brenen, children of Janice Brenen, Carolyn, Gary, Tyrone and Jacqueline Davis, children of Corine Davis, by their mothers, as next friends, Plaintiffs, v. The MICHIGAN BOARD OF EDUCATION, the Michigan Superintendent of Public Instruction, and their employees, agents and assignees in their official capacities, the Ann Arbor School District Board, the Ann Arbor School Superintendent Harry Howard, the Ann Arbor School Pupil Personnel Director Hazel Turner, Martin Luther King Junior Elementary School Principal Rachel Schreiber, and their employees, agents, and assignees in their official capacities as well as named individual Ann Arbor public school administrative and teaching personnel in their personal capacities, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
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Gabe Kaimowitz and Kenneth Lee Lewis, Michigan Legal Services, Detroit, Mich., for plaintiffs.
Patrick J. Devlin, Asst. Atty. Gen., Lansing, Mich., for state defendants.
John B. Weaver, Butzel, Long, Gust, Klein & Van Zile, Detroit, Mich., for Ann Arbor defendants.
This is a civil rights case. The factual background and procedural history of the case have been set forth at length in Martin Luther King Jr. Elementary School Children v. Michigan Board of Education et al., 451 F.Supp. 1324 (E.D.Mich.1978), and will not be repeated here. This case is before this court on defendants' motion to dismiss plaintiffs' amended complaint or to strike portions thereof on the grounds that the amended complaint does not comply with this court's memorandum opinion and order of May 26, 1978, which required the filing of an amended complaint. For reasons set forth more fully herein, defendants' motion to dismiss is granted unless an amendment complying with this memorandum is filed within thirty (30) days.
By memorandum opinion and order dated May 17, 1978, all counts of plaintiffs' complaint were dismissed with the exception of count three. In count three plaintiffs alleged that their right to equal educational opportunity, as defined in 20 U.S.C. § 1703(f), was being violated by defendants. Section 1703(f) states:
No state shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by . . . the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.
By memorandum opinion and order dated May 26, 1978, count three of plaintiffs' complaint was dismissed unless plaintiffs filed an amended complaint which stated a cause of action under 20 U.S.C. § 1703(f), complied with the requirements of Fed.R.Civ.P. 8(a)(2), and set forth the statements requested by defendants in their motions.1 If plaintiffs chose to file an amended complaint, they were specifically directed to state (1) the language barriers it was alleged that defendants should overcome as to each of the plaintiffs, (2) the nature of the appropriate action that each defendant should take as to each plaintiff, and (3) the cause of the alleged denial of equal educational opportunity.
From statements made by plaintiffs' counsel during oral argument of this motion, it appeared that the instructions contained in the memorandum opinion and order of May 26, 1978 might have been inadequate and in certain respects confusing. This memorandum opinion and order represents this court's final attempt to instruct plaintiffs on what allegations are required to state a cause of action under 20 U.S.C. § 1703(f). Plaintiffs' failure to file a second amended complaint in compliance with this order within 30 days will result in automatic dismissal of the complaint with prejudice.
Defendants have moved to strike, among other things, paragraphs 12 and 13 of the amended complaint on the ground that defendants Schreiber and Turner were dismissed from this lawsuit in this court's memorandum opinion and order of May 17, 1978. The plaintiffs' claim of tortious abrogation of constitutional rights by defendants Schreiber and Turner in their personal and official capacities was dismissed by this court in its May 17, 1978, opinion as were all of plaintiffs' constitutional causes of action. By dismissing plaintiffs' claim for tortious abrogation of constitutional rights, it was not the intent of this court to dismiss defendants Schreiber and Turner from plaintiffs' claim under § 1703(f), however, this court will consider whether any of the natural persons named as defendants in this suit can be sued under § 1703(f).
Section 1720(a) defines "educational agency", the entity upon which § 1703(f) places the duty to overcome language barriers, to mean "a local educational agency or a `State educational agency'". "Local educational agency" is defined by 20 U.S.C. §§ 881(f) and 1720(b), in pertinent parts, to mean "a public board of education or . . . any other public institution or agency having administrative control and direction of a public elementary or secondary school." "State educational agency" is defined by 20 U.S.C. §§ 1720(a) and 881(k), in pertinent parts, to mean "the State board of education or other agency or officer primarily responsible for the State supervision of public elementary and secondary schools . . ." With the exception of the state officer specified in § 881(k), no natural persons are encompassed by the statutory definition of educational agency. For this reason all of the Ann Arbor defendants who are natural persons must be excluded from any amended complaint filed by plaintiffs.
Language Barrier (An education agency must take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.)
Plaintiffs must identify their language barriers. Paragraphs 5, 24, 25, 30, and 32 of the amended complaint do provide such identifying information.2 However, paragraphs 24, 25, 30, and 32 also contain references to cultural characteristics of plaintiffs. Cultural characteristics of plaintiffs are irrelevant to a cause of action under § 1703(f). Section 1703(f) cannot be used as a vehicle to attack all the problems engendered by poverty and racial discrimination even if these are problems with which the plaintiffs are confronted. This court does not intend to permit an expansion of the duty created by § 1703(f) to include elimination of what plaintiffs identify as cultural and economic barriers. For this reason references to culture and economics must be eliminated from any amended complaint filed if it is to comply with Fed.R.Civ.P. 8.3
Interference with Equal Participation (An educational agency must take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.)
Plaintiffs must next allege how the language barrier impedes their equal participation in the instructional programs of the defendant educational agencies. Paragraphs 4, 6, 8-13, 21, 23, and 32 adequately set forth such allegations. However, paragraph 6 also contains a reference to cultural barriers which is irrelevant and should be eliminated.
Appropriate Action (An educational agency must take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.)
Plaintiffs must set forth the appropriate action defendants have allegedly failed to take and which defendants have failed to take what action. Although paragraphs 8-13, 20, 26, 27, 28, 29, 33, 34, 35, and 36 pertain to this element of § 1703(f), none of those paragraphs concisely and specifically describes the action plaintiffs allege to be appropriate which defendants have not taken. Paragraph 34 comes the closest to being adequate in this regard with respect to the Ann Arbor defendants, however, the various acts described in that paragraph are not specific as to their substantive content. Paragraph 36 suffers from the same lack of specificity with respect to the identity of funding sources to which the Michigan defendant has failed to apply. Unless plaintiffs are satisfied to sue for the failure of defendants to take any good faith action, in the forms suggested in paragraph 34, to overcome their language barrier, plaintiffs must amend their allegations on the element of appropriate action to specifically identify the substance of the actions they think are appropriate and should be taken and which defendant is responsible for taking what action. In addition, all references to culture or economics contained in paragraphs 26, 27, 29, 33, 34, and 35 should be eliminated.
Race ("No state shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin by . . . the failure . . . to overcome . . . language barriers . . .")
Finally, plaintiffs must identify the connection between the defendants' failure to take appropriate action and a classifying criterion of race, color, sex, or national origin. At oral argument plaintiffs' counsel stated that it was their intent to allege a connection between defendants' omissions and race. The efforts plaintiffs have made in this regard are inadequate.
The initial phrase of § 1703 only prohibits denial of equal educational opportunity "on account of" race by any of the six acts or omissions thereafter enumerated, including the failure to overcome language barriers. On its face the language used to state this...
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