Ervins v. Sun Prairie Area Sch. Dist.

609 F.Supp.3d 709

Dazarrea ERVINS, individually and on behalf of her minor child, Zavion Ervins, and Priscilla Jones, individually and on behalf of her minor child, George Brockman, Plaintiffs,

v.SUN PRAIRIE AREA SCHOOL DISTRICT, Defendant.

21-cv-366-jdp

United States District Court, W.D. Wisconsin.

Signed July 1, 2022

B'Ivory Lamarr, The LaMarr Firm, PLLC, Houston, TX, for Plaintiffs Priscilla Jones, Dazarrea Ervins.

Lori Marie Lubinsky, Danielle B. Tierney, Paul M. Matenaer, Axley Brynelson, LLP, Madison, WI, for Defendant.

OPINION and ORDER

JAMES D. PETERSON, District Judge

On February 1, 2021, the first day of Black History Month, three sixth-grade social studies teachers at a Sun Prairie middle school distributed electronic learning materials about ancient Mesopotamia. A quiz at the end of the materials asked students to assume the position of a judge and apply the Code of Hammurabi to several factual scenarios, one of which asked the students to decide how to punish a defiant slave. The assignment triggered a storm of outrage in the school community and among the general public. The Sun Prairie Area School District apologized, commissioned an investigation, and suspended the teachers, who ultimately resigned.

The plaintiffs in this case are Dazarrea Ervins and Priscilla Jones, the parents of two Black students who attended the middle school. Plaintiffs contend that the Mesopotamia materials, and the school district's handling of the incident, violated their rights and those of their children under federal and state law. Plaintiffs also contend that one of the students, George Brockman, who was not in a class that received the Mesopotamia materials, was subjected to racial and disability harassment by students and staff at district schools over the course of his education.

The school district moves for summary judgment. The quiz was offensive and insensitive. But for reasons explained in this opinion, it did not violate the Fourteenth Amendment, the Establishment Clause of the First Amendment, or federal anti-discrimination law. There is no basis to hold the school district liable under federal law for its handling of the incident.

George Brockman's claims also fail. George suffered years of verbal abuse at the hands of a few fellow students, which his teachers were unable to stop. But there is no evidence that this harassment was based on his disability. There is no genuine dispute that he was cruelly bullied based on his race. But George's claim is based on the denial of educational opportunity, and plaintiffs adduce no admissible evidence that his education suffered, which is a necessary element of that claim.

With the federal claims out of the case, the court will decline to exercise supplemental jurisdiction over plaintiffs’ state-law claims and remand those to state court.

UNDISPUTED FACTS

The court begins with problems in the parties’ summary judgment evidence. Plaintiffs respond to many of defendant's proposed facts with argument and additional facts. See, e.g. , Dkt. 50, response to ¶ 24. These responses contravene the court's summary judgment procedures and they fail to raise genuine factual disputes. The court has ignored the argumentative responses and it will deem the corresponding facts to be undisputed.

The school district responds to many of plaintiffs’ supplemental facts with groundless hearsay objections. For example, plaintiffs propose as undisputed facts that Zavion became depressed, received hate mail, and was subjected to racial insults, all based on Zavion's deposition testimony. Dkt. 49, ¶ 96. The school district objected that Zavion's deposition testimony is inadmissible as hearsay. The school district lodged the same objection to George's testimony that he was subjected to racial insults. Id. , ¶ 108. The hearsay objections are frivolous, because the racial insults are not offered for their truth. Zavion and George have first-hand knowledge that they suffered racial name-calling and this testimony is admissible. The school district also objects to certain facts because counsel had lodged a "form" objection during the cited deposition testimony. See, e.g. , id. , ¶ 18. These objections are also frivolous; making a form objection during a deposition does not render the testimony inadmissible. The court has disregarded the school district's responses based on hearsay objections or objections to the form of deposition questions.

The school district moves to strike the declarations of plaintiffs’ expert, Bruce I. Levenberg. Dkt. 36. Defendants contend that Levenberg's supplemental report, Dkt. 36-2, is untimely and that his original report, Dkt. 36-1, does not contain an adequate disclosure of the bases of his opinions. Plaintiffs counter that the delay in disclosing the supplemental report was harmless. But the supplemental report came after Levenberg's deposition, and thus the delay inhibited defendants’ preparation for the deposition. Plaintiffs also contend that the supplemental report was authorized by Rule 26(e). But that ignores that scheduling order, Dkt. 12, which explains: "Supplementation under Rule 26(e) is appropriate only to correct mistakes and oversights, not to include new examples, illustrations, or analyses that could have been included in an original expert report." And in any case, a supplemental report would be due not later than five days before the expert's deposition. Id. The supplemental report is excluded as untimely.

The Levenberg declarations also have substantive problems. Levenberg purports to have conducted a "forensic case study analysis" of the role of the school district and its personnel. But "forensic case study analysis" is not a systematic analytical methodology and his report is highly conclusory. He does not cite any evidence that anyone "harassed, intimidated, and bullied" students into assuming the role of "Slave Master" in connection with the Mesopotamia assignment. He does not explain specifically how the school district or any of its personnel violated any established professional standards. His opinions about the long-term effects on George and Zavion are highly speculative and beyond his expertise. The court will grant the defendant's motion to exclude Levenberg's evidence under Federal Rule of Evidence 702 because it is unreliable and unhelpful to resolving the issues before the court. In the analysis section below, the court will further explain its conclusion that Levenberg's opinions are unhelpful and conclusory.

With these preliminary matters in mind, the following facts are not genuinely disputed.

A. The Mesopotamia assignment

In February 2021, Zavion Ervins and George Brockman were sixth graders at Patrick Marsh Middle School in the Sun Prairie Area School District. (Because Dazarrea and Zavion share the same last name, the court will refer to all plaintiffs by their first names). Zavion and George are Black.

February 1 was the first day of Black History Month, so Black history was part of the curriculum at the time. Sixth graders were also beginning a unit on ancient Mesopotamia. Because of the COVID-19 pandemic, classes at Patrick Marsh were taught remotely that semester. Students were sent a slide deck with lessons and activities to read and complete at home each day. Zavion was in Mary Headington's social studies class; George was in a different class.

The February 1 slide deck in Zavion's class included a Black History Month slide featuring Black leaders, including Barack Obama, Rosa Parks, and Martin Luther King, Jr. Dkt. 33-1. The rest of the deck was about the geography, religion, and politics of ancient Mesopotamia. The deck contained several slides about Hammurabi, a Mesopotamian king who created an early set of laws known as Hammurabi's Code.

At the end of the slide deck, there was an interactive assignment, titled "Hammurabi's Code—Your Turn to be the Judge," that asked students to apply Hammurabi's Code to three scenarios. One scenario stated:

A slave stands before you. This slave has disrespected his master by telling him "You are not my master!" How will you punish this slave?

Dkt. 31-1, at 19. The students were supposed to type in their answers and the correct answer would be revealed. The correct answer was "put to death." Dkt. 40-4.

Zavion was upset when he saw the question. He emailed Headington and showed the slide to his mother, Dazarrea. Dazarrea also emailed Headington to complain. Headington replied to Dazarrea that Headington did not mean to offend anyone and said that Zavion did not need to complete the assignment if it made him uncomfortable.

Dazarrea called the principal at Patrick Marsh, Rebecca Zahn. When Zahn learned about the Mesopotamia materials, she directed Patrick Marsh teachers to stop using them and contacted district leadership to inform them about the situation and discuss next steps. Before Dazarrea's call, neither Zahn nor any other Patrick Marsh administrator, school district administrator, or district curriculum committee member had seen or known about the materials. The materials were not part of the school district-approved social studies curriculum. Rather, Headington and two other teachers had adopted them to supplement the Mesopotamia curriculum.¹ The materials had also been distributed to students in 2019 and 2020.

George was not in a class that received the Mesopotamia materials. But he learned about them later that afternoon when sixth-grade Patrick Marsh students were asked to join a Zoom meeting, where staff "apologize[d] to the African Americans" for having an assignment about slavery. Dkt. 50, ¶¶ 87, 88. George became upset, left the Zoom meeting, and called his mother, Priscilla. Meanwhile, the slave question had gone viral in the news and on social media. George's brother sent George and Priscilla a screenshot of the question that he had found online. When George saw it, he ran to his room, cried, banged his head on the wall, and intentionally fell off a couch to hit his head. He "didn't...