N.N. v. Madison Metropolitan School

• Decision Date: 24 November 2009
• Docket Number: No. 08-cv-581-bbc.,08-cv-581-bbc.
• Citation: 670 F.Supp.2d 927
• Parties: N.N., a minor, by S.S., the parent and next friend of N.N., individually and on behalf of others similarly situated, Plaintiff, v. MADISON METROPOLITAN SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

670 F.Supp.2d 927

N.N., a minor, by S.S., the parent and next friend of N.N., individually and on behalf of others similarly situated, Plaintiff, v. MADISON METROPOLITAN SCHOOL DISTRICT, Defendant.

No. 08-cv-581-bbc.

United States District Court, W.D. Wisconsin.

November 24, 2009.

Michael Robert Fox, Fox & Fox, S.C., Madison, WI, for Plaintiffs.

David E. Rohrer, Lathrop & Clark LLP, Madison, WI, for Defendant.

OPINION and ORDER

BARBARA B. CRABB, District Judge.

In 2007, plaintiff N.N. was a freshman at Madison East High School. She requested a transfer to a different school district for the following year, but defendant Madison Metropolitan School District denied the request on the ground that plaintiff's transfer would "increase racial imbalance" in the school district. Plaintiff brought this lawsuit under 42 U.S.C. §§ 1981 and 1983, contending that defendant's decision was unlawful race discrimination in light of Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007), in which the Supreme Court concluded that two school districts (Seattle and Louisville) violated the equal protection clause by using a student's race in determining placement at a particular school. Plaintiff seeks damages only; after the Court decided Parents Involved, defendant stopped relying on a student's race when deciding transfer requests.

In a previous order, I granted plaintiff's motion to certify a class under Fed. R.Civ.P. 23(b)(3) for "[a]ll students residing in the Madison Metropolitan School District who were denied transfer to another school district, for one or more of the school years from 2002-2003 through 2007-2008, under the provisions in the district's full-time open enrollment program that limited student transfers that increase a racial imbalance." Dkt. #34. Plaintiff has sent out notices to class members and the deadline for opting out has passed.¹ Defendant's motion for summary judgment is now fully briefed. Dkt. # 44.

Defendant drafted its motion on the assumption that its use of race in making transfer decisions was unlawful. It does not argue that its decisions were narrowly tailored to satisfy a compelling government interest, as it would be required to do in order to satisfy the strict scrutiny review set forth in Parents Involved. Moreover, it does not argue that it reasonably believed before Parents Involved that it was acting lawfully, because such a defense (called "qualified immunity" in legal jargon) is not available to municipalities such as school districts. Owen v. City of Independence, 445 U.S. 622, 650, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Nabozny v. Podlesny, 92 F.3d 446, 455 (7th Cir.1996).

Instead, defendant says it should not be held liable for money damages because it was compelled to act by Wis. Stat. § 118.51(7), which required defendant to "reject any application for transfer into or out of the school district ... if the transfer would increase racial imbalance in the school district." Under cases such as Bethesda Lutheran Homes and Services, Inc. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998), a municipality "cannot be held liable under section 1983 for acts that it did under the command of state or federal law."

Thus, the primary question raised by defendant's motion for summary judgment is whether state law or school district policy is responsible for the violations of federal law. Is this an example of the school district taking advantage of an ambiguous statute in order to justify its own unconstitutional actions or did the state's mandate leave the school district no constitutional alternative? I conclude it is the latter. Although plaintiff emphasizes that § 118.51(7) gave defendant discretion to adopt its own definition of "increase racial imbalance," no definition consistent with the statute would also be consistent with Parents Involved. In that case, a majority of the Court concluded that the plans at issue violated the equal protection clause because they made a student's race "determinative standing alone" in the context of student placement, which is just what § 118.51(7) required defendant to do. It is possible that defendant could have defined "imbalance" using different percentages so that the class members' transfer requests would be allowed, but that is not an appropriate basis for holding defendant liable under § 1983. Defendant was doing nothing more than implementing a state law directive; it was not making its own policy choice about the use of race in making transfer decisions. Because the same standard for municipal liability applies to plaintiff's claim under § 1981, defendant's motion for summary judgment must be granted in full.

Initially, defendant made several other arguments in support of its summary judgment motion: (1) the student transfer policy was developed by the superintendent, who did not make policy for the school district; (2) defendant is entitled to sovereign immunity because it was acting as an arm of the state (defendant did not include this ground in its original answer, so it has filed a motion for leave to amend its answer, dkt. # 42, which will be granted as unopposed); and (3) plaintiff's claim for the 2002-2003 school year is barred by the statute of limitations. Defendant withdrew the first argument in its reply brief. Because I am granting defendant's motion in full on the ground that plaintiff's alleged injuries were not caused by a municipal policy, I need not consider the other arguments.

One other motion is before the court, which is plaintiff's motion to "strike" an argument that defendant raised for the first time in its reply brief regarding the statute of limitations for the § 1981 claim. Dkt. # 150. This motion will be denied as moot.

From the parties' proposed findings of fact and the record, I find that the following facts are undisputed.

UNDISPUTED FACTS

Wisconsin has enacted an "open enrollment" statute, which creates a procedure under which public school students may apply to attend a school in a district other than the district of their residence. Wis. Stat. § 118.51. However, transfer is not available in all circumstances. A provision called "racial balance" provides the following exception:

The school board ... shall reject any application for transfer into or out of the school district ... if the transfer would increase racial imbalance in the school district. A pupil who transfers out of a school district under subch. VI of ch. 121 shall not be counted in that school district's membership, as defined in s. 121.004(5), for the purpose of determining the school district's racial balance under this paragraph.

Wis. Stat. § 118.51(7). The statute directs school districts to adopt a resolution "specifying ... the limitation on transfers into or out of the school board under sub. (7)." Wis. Stat. § 118.51(4)(a)5.

According to guidelines that defendant issued in April 1998, defendant "delegated to the Superintendent the authority to define the terminology `increase in the racial imbalance in the Madison Metropolitan School District.'" The superintendent "defined racial imbalance as not increasing the minority student population (1) by no more than .04% in the [school district] as a whole, (2) by less than a .5% increase in the minority population at any particular school, and (3) by not increasing the minority student population in schools in which the minority population already exceeds 40%." (Although the policy seems to make no sense as written, neither party acknowledges the problems with the wording or suggested that it was transcribed incorrectly. Presumably the policy means that defendant would not grant a transfer request if doing so would increase "the minority student population" by more than .04% in the district "as a whole" or by .5% or more at any particular school or if the request came from a school in which the minority population already exceeded 40%.) In 2005, the superintendent changed the last percentage from 40 to 43.

Defendant defined "minority student" using the same definition used to define "minority group pupil" in Wis. Stat. § 121.845(2), which is "a pupil who is Black or African American, Hispanic, American Indian, an Alaskan native, or a person of Asian or Pacific Island origin." "Nonminority" students included all students who did not come within the "minority" subcategories and were designated "white" or "white, non-Hispanic," for which defendant's open enrollment statistics used an "ethnic" code of "5."

The percentage of minority students in the school district between 2002 and 2008 was as follows: 39 percent in 2002-2003; 41 percent in 2003-2004; 42 percent in 2004-2005; 44 percent in 2005-2006; 46 percent in 2006-2007; and 48 percent in 2007-2008.

During the 2002-2003 school year, defendant denied eight or nine open enrollment transfer applications of nonminority students on the ground that granting them would create a "racial imbalance" within the meaning of the guidelines. In 2003-2004, there were nine such denials; in 2004-2005 and 2005-2006, there were 72 each year; in 2006-2007, there were 86; and in 2007-2008, there were 125. If defendant had granted these requests, the percentage of minority students in the district would have increased from .1 to .2 percent in each of those school years.

In February 2007, plaintiff N.N. was a full-time student at Madison East High School. She filed an application with defendant for transfer under the open enrollment program to either the Waunakee or the Monona Grove School District for the 2007-2008 school year. Plaintiff's applications listed her "race/ethnicity" as "White, not of Hispanic Origin." In April 2007, defendant denied plaintiff's application, stating "[i]n accordance with s. 118.51(7), Wis. Stats., and school district policy, the resident school district has determined that permitting this transfer would increase racial imbalance in the school...