Rubio ex rel. Z.R. v. Turner Unified School Dist.

• Decision Date: 09 February 2007
• Docket Number: Civil Action No. 05-2522-KHV.
• Citation: 475 F.Supp.2d 1092
• Parties: Lorenzo E. RUBIO, as next friend for Z.R., a minor, Plaintiff, v. TURNER UNIFIED SCHOOL DISTRICT NO. 202 et al., Defendants.
• Court: U.S. District Court — District of Kansas

475 F.Supp.2d 1092

Lorenzo E. RUBIO, as next friend for Z.R., a minor, Plaintiff, v. TURNER UNIFIED SCHOOL DISTRICT NO. 202 et al., Defendants.

Civil Action No. 05-2522-KHV.

United States District Court, D. Kansas.

February 9, 2007.

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Chuck N. Chionuma, Lyra L. Johnson, Chionuma & Associates, P.C., Kansas City, MO, for Plaintiff.

Gregory P. Goheen, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for Defendants.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Lorenzo E. Rubio, as next friend and father of Z.R., a minor, filed suit against the Turner Unified School District No. 202, the district superintendent, the Turner Board of Education, its members, and the principal and several teachers at Endeavor Alternative School. Plaintiff alleges that by prohibiting students from speaking Spanish at Endeavor Alternative School, defendants violated Z.R.'s rights under 42 U.S.C. § 1983 and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.¹ On September 28, 2006, the Court sustained part of defendants' motion to dismiss, but granted plaintiff leave to amend his complaint on or before October 12, 2006. See Memorandum And Order (Doc. # 45). The Court held that in the amended complaint, plaintiff could assert (1) a claim for national origin discrimination against the District under Title VI, and (2) a claim for retaliation against the District under Title VI. See id. On October 12, 2006, plaintiff filed an amended complaint which asserted these two claims. See Amended Complaint (Doc. # 46). Before defendant answered or otherwise responded to that complaint, but after defendant notified plaintiff that the amended complaint continued to demand punitive damages — which the Court had dismissed — plaintiff filed a sixth complaint. See "Amended" Amended Complaint (Doc # 48) filed October 26, 2006. In the sixth complaint, plaintiff asserted a claim for violation of Z.R.'s procedural due process rights under state law and included allegations which related to claims which the Court has dismissed. This matter is before the Court on Defendant's Motion To Strike And Dismiss (Doc. # 49) filed November 9, 2006. For reasons stated below, the Court sustains defendant's motion in part.

Factual Background

Plaintiffs amended complaint (Doc. # 48) alleges as follows:

Plaintiff is the father and next friend for Z.R., a minor who attends high school at Endeavor Alternative School ("Endeavor") in the Turner Unified School District No. 202 (the "District"). Bobby Allen is the district superintendent. Jennifer Watts is the principal and Susan Serzyski is a teacher at Endeavor.

During the 2005-06 school year, Watts and Serzyski prohibited Z.R. and others of Hispanic origin from speaking Spanish on school premises. See "Amended" Amended Complaint (Doc. # 48) 1129. During lunch hour, on November 28, 2005, Watts told Z.R. not to speak Spanish. See id., ¶ 33. One school period later, Serzyski ordered Z.R. not to speak Spanish in the hallway and told him to go to the principal's office. See id., ¶¶ 35-36. Serzyski pushed an intercom in front of other students and told Watts over the public address system that she was sending Z.R. to the office so that he could speak Spanish to her. See id., ¶ 38. Watts then told Z.R. that he was not in Mexico and that he should speak only English on the school premises. See id., ¶ 40. Watts immediately suspended Z.R. and did not inform him of his right to appeal the suspension under Kansas law. See id., ¶¶ 41-43. Watts had authority to end or change the "No Spanish" policy at Endeavor. See id., ¶¶ 44, 60.

Later that day, plaintiff called Watts who told him that "We speak English here. This is not Mexico." See id., ¶ Plaintiff asked Watts if her position on Spanish reflected a District policy and she stated that she could not speak for other buildings, but that in her building "we only speak English." Id., ¶ 50. Plaintiff asked Watts to state the school's position in writing and Watts gave him a document which stated that Z.R. could not speak Spanish on school premises and that he was suspended for doing so.² See id., ¶¶ 51-53.

The following morning, November 29, 2005, plaintiff went to the superintendent's office and left a copy of Watts' written statement that Z.R. was not to speak Spanish on the school premises. See id., ¶ 55. Allen later contacted plaintiff and asked whether he had retained a copy of Watts' written statement. See id., ¶¶ 56-57.

Since Z.R. returned to school, Watts and teachers have subjected his school work to razor thin scrutiny. See id., ¶ 59. Watts and teachers have also disciplined Z.R. because of this lawsuit. See id. On one occasion, four teachers took Z.R. into an empty room and threatened him. See id.

Watts had actual notice that Z.R. was subject to harassment and discrimination on the basis of race and national origin as a result of the "No Spanish" rule, but she failed to take immediate and appropriate corrective actions to end the harassment and discrimination.

On December 12, 2005, plaintiff filed suit against the District, Allen, Watts, Serzyski, the Turner Board of Education, the individual members of the Turner Board of Education, and Does 1 through 5, unknown teachers at Endeavor. On September 28, 2006, the Court sustained defendant's motion to dismiss in part and granted plaintiff leave to file an amended complaint on two specific claims: (1) a claim for national origin discrimination against the District under Title VI, and (2) a claim for retaliation against the District under Title VI. See Memorandum And Order (Doc. # 45) at 20. Defendant asks the Court to strike or dismiss plaintiff's amended complaint.³

Analysis

Defendant asks the Court to strike or dismiss plaintiff's amended complaint of October 26, 2006. Defendant assumes that plaintiff could file the amended complaint without leave of court. Rule 15(a), Fed.R.Civ.P., provides that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served." (emphasis added). Because plaintiff had already amended his complaint on four prior occasions, he could not do so again without leave of court or defendant's written consent. Plaintiff offers no explanation why he did not seek leave to file a sixth complaint⁴ Because plaintiff did not seek leave to file the amended complaint of October 26, 2006, the Court ordinarily would strike the entire complaint. Because the deadline to seek leave to file an amended complaint has passed, see Scheduling Order (Doc. # 51) filed November 29, 2006 (deadline for motions to amend January 10, 2007), the Court will liberally construe plaintiffs response to defendant's motion to strike and dismiss as a motion for leave to file the amended complaint of October 26, 2006. In addition, because defendant did not object to the fact that plaintiff filed the amended complaint on October 26, 2006, the Court will sustain plaintiffs motion to amend and consider on the merits defendant's motion to strike and dismiss.

I. Title VI Discrimination Claim (Count I)

Title VI is a general prohibition against discrimination by federally funded programs. See id. at 1302. The District argues that plaintiff does not state a claim under Title VI because he has not pled that a District official, other than Watts, had actual notice of the alleged discrimination.

Section 601 of Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Private individuals may sue to enforce Section 601 of Title VI and obtain both injunctive relief and damages. Alexander v. Sandoval, 532 U.S. 275, 279, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Title VI further states that no action shall be taken until the department or agency concerned has advised the "appropriate person" of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. 42 U.S.C. § 2000d-1. Under an identical provision in Title IX, the Supreme Court has held that unless an "appropriate person" has actual knowledge of the alleged discrimination and fails to adequately respond to such discrimination, a damage remedy will not lie. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998).⁵

Here, the District can be liable for the acts of teachers at Endeavor if Watts had actual notice of the conduct and did not take corrective action to end the alleged discrimination. As the Court explained in a prior order, Gebser implied that a school district can be liable where a principal knows of a teacher's misconduct. See Memorandum And Order (Doc. # 45) at 16-17; Gebser, 524 U.S. at 291, 118 S.Ct. 1989 (information insufficient to alert principal to possibility of teacher's sexual relationship with student). Plaintiff alleges that as principal, Watts had actual notice of the teachers' misconduct. See "Amended" Amended Complaint (Doc. # 48) ¶ 61. Because plaintiff alleges that Watts also had authority to take corrective action to end the alleged discrimination, see id., ¶¶ 44, 60, she qualifies as an "appropriate person" for purposes of liability on the District under Title VI. See Gebser, 524 U.S. at 291, 118 S.Ct. 1989; Bostic v. Smyrna Sch. Dist., 418 F.3d 355, 360 (3d Cir.2005) (school principal entrusted with responsibility and authority normally associated with that position ordinarily will be "appropriate person" under Title IX).

As to acts by Watts, however, plaintiff has not pled that an "appropriate person" other than Watts had actual notice of her conduct.⁶ Title VI contains no reference to an institution's "agents" and therefore does not expressly call for application of agency principles. Gebser,...