Wolfe v. Fayetteville, Arkansas School Dist., Case No. 08-5205.

• Decision Date: 26 February 2009
• Docket Number: Case No. 08-5205.
• Citation: 600 F.Supp.2d 1011
• Parties: Curt WOLFE and Penny Wolfe, as next Friends of W.W., Plaintiffs v. FAYETTEVILLE, ARKANSAS SCHOOL DISTRICT and Byron Lynn Zeagler, Defendants.
• Court: U.S. District Court — Western District of Arkansas

Page 1011

600 F.Supp.2d 1011

Curt WOLFE and Penny Wolfe, as next Friends of W.W., Plaintiffs v. FAYETTEVILLE, ARKANSAS SCHOOL DISTRICT and Byron Lynn Zeagler, Defendants.

Case No. 08-5205.

United States District Court, W.D. Arkansas, Fayetteville Division.

February 26, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David Westbrook Doss, Jr., Doss Law Firm, PA, Fayetteville, AR, for Plaintiffs.

Christopher J. Heller, Khayyam M. Eddings, Friday, Eldredge & Clark, Little Rock, AR, for Defendants.

MEMORANDUM OPINION & ORDER

ROBERT T. DAWSON, District Judge.

Currently before the Court are the Motion to Dismiss filed by Defendants, Fayetteville School District and Byron Lynn Zeagler, and related documents. (Docs. 10, 11, 20, 21, & 23). Defendants assert that Plaintiffs, Curt Wolfe and Penny Wolfe, as next friends of WW, have failed to state causes of action under 42 U.S.C. § 1983 for sex discrimination, perceived sexual orientation discrimination, discrimination based on the anti-homosexual nature of attacks, violation of First Amendment rights, and denial of Due Process. Defendants further assert that Plaintiffs have failed to state causes of action under Arkansas state law for outrage, deprivation of the right not to be bullied, negligent supervision, defamation, and false light. Finally, Defendants contend that certain allegations by Plaintiffs should not be considered due to the operation of the statute of limitations and that punitive damages are not available against the Fayetteville School District. For the reasons set forth herein, Defendants' motion is GRANTED IN PART AND DENIED IN PART.

I. Background

In considering a motion to dismiss, the court, as it is required to do, takes all allegations in the complaint as true and views the facts in the light most favorable to the non-moving party. Wisdom v. First Midwest Bank of Poplar Bluff, 167 F.3d 402, 405 (8th Cir.1999). "While the court must accept allegations of fact as true when considering a motion to dismiss, the court is free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations." Wiles v. Capitol Indemnity Corp., 280 F.3d 868, 870 (8th Cir.2002). Based on these standards, Plaintiffs allege as follows:

1. The Fayetteville, Arkansas School District ("FSD" or "District") has a Policy and Procedures Handbook stating that the sexual harassment and/or bullying of students is a violation of District policy.

2. In 1998, the FSD implemented a Commitment to Resolve ("CTR") in response to a complaint by a male student alleging a hostile learning environment based on antigay harassment and violence. The CTR stated that "[f]aculty/staff will be required to report all instances of sexual harassment to their immediate supervisor or appropriate administrative personnel and also refer the student affected to the Title IX Coordinator or Equity Coordinator." The District has not complied with the CTR.

3. WW was a student at McNair Middle School ("McNair") in the FSD from August 2003 until May 2005.

4. Between August and November 2004, students began calling WW a "fag" and a "homo."¹ The name-calling was reported to school officials, who did nothing in response.

5. On November 11, 2004, WW was attacked while on a FSD school bus by fellow-students CG and CC. McNair's principal suspended WW based on other students' statements that WW was the aggressor. After demand by WW's parents, the principal reviewed the tape recording from the school bus's camera and determined WW was not at fault.

6. On January 28, 2005, WW's mother informed McNair's principal that fellow-student JW had collected a list of twenty students who planned to physically injure WW. The principal stated he knew about the list.

7. On January 31, 2005, JW physically assaulted WW and called WW names, such as "faggot," in the restroom at McNair.

8. Less than two weeks later, fellow-student CS shoved WW into a locker and called him a "fag." Despite the complaint of WW's mother, McNair's principal took no action.

9. Approximately two months later, JW taunted WW outside his home, calling WW a variety of highly offensive names. Despite the reporting of this incident to school administrators, no action was taken.

10. WW was a student at Woodland Junior High School ("Woodland") from August 2005 until May 2007. The harassment which began at McNair continued at Woodland. WW's parents reported several incidents of harassment to school officials which went unpunished.

11. While WW attended Woodland, Byron Zeagler was the vice principal.

12. In response to one of WW's complaints about student harassment, Zeagler asked, "Well, are you gay?" On another occasion and after harassment by a student, Zeagler said to WW in front of the harassing student, "So you [WW] went to the bathroom and cried like a little baby." After the harassing student left, Zeagler told WW to "toughen up" and that he should not "go to the bathroom and cry." No action was taken against the harassing student.

13. On May 10, 2006, in the middle of class, fellow-student BB punched WW. Zeagler informed WW's mother that he was not going to report the incident to police because WW "got what he deserved." This conclusion was based on the false premise that WW had made statements about BB's deceased mother.

14. On May 24, 2006, WW was severely beaten by three classmates at Gulley Park in Fayetteville. WW's parents reported the incident to the District, but no action was taken.

15. On December 3, 2006, Woodland students formed the "Everyone Hates [WW]" group on the website "Facebook." In its "Group Info," the group stated that "[WW is] a little bitch. and [sic] a homosexual that NO ONE LIKES." Comments by group members were threatening and generally anti-homosexual in nature. After WW's mother reported the group to Zeagler, he asked, "Well, is he a homosexual?" Zeagler took no action.

16. On March 8, 2007, fellow-student WS posted to the Facebook group entitled "I Love Watching Fights at School" that he was going to have someone beat up WW. The next morning, WW's mother reported the posting, to which Zeagler responded that "students said things all the time." That afternoon, fellow-student IT punched WW in the face. An eyewitness stated that "The teachers stuck their heads out of the doors and said `kids cut it out.' They ignored the attack." Despite the urging of WW's mother, Zeagler refused to report the incident to police. Zeagler and other administrators failed to punish the students involved.

17. On March 14, 2007, the day WW returned to school after recovering from the attack, Zeagler pulled WW out in the hall and patted him down and searched his wallet for an IPOD. This search was contrary to District policy, as no witnesses were present. The search revealed no wrongdoing.

18. That same day, Zeagler reported to the Fayetteville Police that WW threatened to get even with IT. During the evening of March 14, school resource officers were dispatched to WW's home based on the District's report that WW had threatened to bring a gun to school. No wrongdoing on the part of WW was ever found.

19. Based on Zeagler's refusal to report the March 9 incident to police, WW's mother made a report. Detective Travis Lee investigated the incident, and Zeagler told the detective that he did not call the police because "both parties were involved." Zeagler provided Lee with his handwritten notes stating the unfounded allegation that WW had threatened to bring a gun to school. Zeagler provided no information regarding attackers WS and IT.

20. Zeagler's notes were eventually published in the Northwest Arkansas Times on April 3, 2008.

21. In August 2007, WW began classes at Fayetteville High School ("FHS"). Harassment continued at FHS.

22. That year, Zeagler became the vice principal at FHS.

23. On October 15, 2007, fellow-student NG punched WW while WW was at the bus stop. NG's brother recorded the incident, showed the tape to other students, and put the video on the website "YouTube." The District took no action against NG.

24. On March 23, 2008, Dan Barry of The New York Times wrote an article concerning the FSD's failure to stop the harassment of WW. The District declined to comment for the article, but in response, the District issued a widely-disseminated press release stating that "the whole story cannot be told" and that many of the attacks were outside the District's jurisdiction. The "whole story" was a theme utilized by the District to address the WW situation.

25. On March 25, 2008, students, in consultation with Zeagler, a teacher, and the District's public relations department, started the Facebook group "The Whole Story" on which harassing and threatening posts were made. Within weeks, the group was shut down by Facebook.

26. On April 3, 2008, FSD Superintendent Bobby New told the Northwest Arkansas Times that "Federal laws prohibit school officials from releasing information pertaining to individual student discipline issues." Superintendent New referred the columnist to a letter to the editor so that the columnist could get the "whole story." The letter stated that WW was an "instigator and disrespectful to superiors" and called his mother an "opportunist."

27. The District's public relations director represented to the media that "[t]here are two sides to a story."

28. On May 23, 2008, the Northwest Arkansas Times reported that the principal of FHS stated at graduation in reference to WW that "students and teachers demonstrated their remarkable character" and "in my 31 years as an educator, I've never been more proud."

II. Discussion

In determining whether a motion to dismiss under Rule 12(b)(6) should be granted, the court must test the legal sufficiency of a complaint. A plaintiff must state "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v....