George v. Bd. of Educ. of Millburn

34 F.Supp.3d 442

Omari GEORGE, a minor; Daryl George and Brenda Barnes–George, individually and as Parents and Natural Guardians of Omari George, Plaintiffs

v.BOARD OF EDUCATION OF THE TOWNSHIP OF MILLBURN; Richard Brodow, personally and in his Official Capacity; William Miron, personally and in his official capacity; and Michelle Pitts, personally and in her Official Capacity, Defendants.

Civ. No. 2:11–cv–00043 WJM.

United States District Court, D. New Jersey.

Signed July 23, 2014.

Colleen Patricia Cyphers, Levin Cyphers, Toms River, NJ, for Plaintiffs.

Michael S. Mikulski, II, Connor Weber & Oberlies, P.C., Moorestown, NJ, for Defendants.

OPINION

WILLIAM J. MARTINI, District Judge.

Plaintiffs O.G., Daryl George, and Brenda Barnes–George allege race-based discrimination at Millburn High School. Plaintiffs further allege that the Board of Education of the Township of Millburn (the “Board”) violated O.G.'s due process rights when it expelled O.G. from school. The four Defendants—the Board and three Millburn school administrators—each move for summary judgment on all claims pursuant to Federal Rule of Civil Procedure 56. There was no oral argument. Fed.R.Civ.P. 78(b). For the reasons set forth below, Defendants' motion is GRANTED IN PART, and DENIED IN PART.

I. BACKGROUND

There are three Plaintiffs in this case. Plaintiff O.G. was formerly a student at Millburn High School. Plaintiffs Daryl George and Brenda Barnes–George (the “Plaintiff Parents”) are O.G.'s parents.

There are four Defendants in this case. The first Defendant is the Board. The other Defendants (the “Individual Defendants”), who are named as Defendants in their official and personal capacities, all worked in the Millburn School System. Defendant Dr. Richard Brodow was Millburn's Superintendent of Schools; Dr. William Miron was the Principal of Millburn High School; and Dr. Michelle Pitts was the Vice Principal of Millburn High School.

Unless otherwise noted, the following facts are undisputed. O.G. is an AfricanAmerican male. Defendants' Statement of Material Facts Not In Dispute (“DSM”) ¶ 1, ECF No. 56–3. O.G. enrolled at Millburn High School in September 2007. Id. During his time at Millburn High, O.G. was subjected to racist epithets and, at times, violence. Following an altercation that occurred on January 9, 2009, O.G. was expelled from school. O.G. was then home-schooled. O.G.'s expulsion was ultimately commuted to a suspension, and O.G. was allowed to return to Millburn High School. After graduating, O.G. went on to college at Morehouse University.

A. Incidents Involving O.G. Prior to January 9, 2009

1. Freshman Year

In March 2008, when he was a freshman, O.G. was involved in a physical altercation with a junior who was Asian–American (the “Junior”). Id. ¶ 4. There is no evidence that O.G. and the Junior were involved in any prior or subsequent altercation. Id. ¶ 7. During the altercation, O.G.'s nose was broken. Plaintiffs' Counterstatement of Contested Material Facts (“PSM”) ¶ 6, ECF No. 57–2. According to O.G., the Junior said he would “beat [O.G.'s] black ass.” Id. ¶ 4. As a result of the altercation, the Junior was suspended for two days and O.G. was given five days detention. Id. ¶ 7. Though the incident with the Junior occurred in 2008, an accident report was not written until March 11, 2009. Id. ¶ 10. At her deposition, Vice Principal Pitts testified that, besides from this March 11, 2009 accident report, there are no records that “support any additional claims of race-based harassment, intimidation, discrimination or bullying during O.G.'s freshman year.” DSM ¶ 8. However, O.G. testified that there were other occasions during his Freshman year when he was subject to race-based bullying. Specifically, O.G. testified that his friends (and apparently O.G., as well) were called names such as “wigger” and “wangster.” O.G. Dep. Tr. at 37:14–38:19, ECF Nos. 57–4 & 57–5. O.G. testified that he would report these incidents to Dr. Pitts and fill out an incident report. Id. at 38:22–25.

O.G. also testified that he did not know of any discipline handed down based on the incident reports he provided to Dr. Pitts. Id. at 40:9–12.

2. Sophomore Year Through January 8, 2009

Vice Principal Pitts testified at her deposition that she could not recall any reported incidents of race-based harassment or bullying involving O.G. from the beginning of O.G.'s sophomore year until January 8, 2009. Pitts Dep. Tr. at 71:15–20, ECF No. 56–5. O.G. testified differently. He said that in his Sophomore year he reported to Dr. Pitts that another student told him, “get out of the way, blackie.” O.G. Dep. Tr. at 48:19–15. O.G. testified that on another occasion, this same student stopped him in the hall and said, “yo, yo, blackie.” Id. at 49:17–50:12. O.G. testified that the student took his ipod, told O.G. that he didn't “listen to nigger music anyway,” and proceeded to drop the ipod on the ground. Id. O.G. testified that he reported this incident in an incident report. Id. at 50:9–15. O.G. testified that Dr. Pitts said she would do a full investigation but O.G. never heard of any discipline based on the investigation. Id. at 51:21–52:6. O.G. testified that on another occasion, the same student called him a “wigger.” Id. at 52:7–16. Additionally, O.G. testified that Millburn High School students accosted him at a diner one weekend and called him a “tough nigger.” O.G. believes his father wrote a letter informing the school about the incident.Id. at 55:17–58:16.

B. January 8, 2009 Incidents

On January 8, 2009, O.G. was involved in an incident where two of his friends were pushed by upper-classmen who uttered racial comments. DSM ¶ 11. According to O.G., one of the aggressors called O.G. “nigger” and said that he “[didn't] like black people in [his] hallway.” PSM ¶ 23. According to O.G., this student said he would beat O.G.'s “black ass.” Id. ¶ 23. O.G. testified that the student then shoved O.G. and slammed O.G.'s head into a locker. O.G. Dep. Tr. at 64:8–10. Vice Principal Pitts's notes reflect a different story than the one offered by O.G. According to Vice Principal Pitts's notes, which are undated, “the senior who hit [O.G.] made a rude remark which was in no way racist.” Motion for Summary Judgment (“MSJ”), Ex. I, ECF No. 56–12.

Later in the day, O.G. was again confronted by the upper-classmen involved in the earlier incident. DSM ¶ 12. O.G. testified that the upper-classmen pushed O.G.'s friend, and that they also punched and scratched O.G. Id. Two school staff members, Mr. Schilp and Ms. Osborne, were present during the altercation. Id. ¶ 13. In a written statement dated roughly six months after the fact, Mr. Schilp wrote that he did not see the beginning of the fight but he did observe O.G. and another student grappling. Id. ¶ 14; MSJ, Ex. E, ECF No. 56–8. Mr. Schilp stated that he did not see the beginning of the fight. He further stated that he did not hear any racial comments uttered. Id. Like Mr. Schilp, Ms. Osborne also wrote a statement about the events roughly six months after it occurred. MSJ, Ex. F, ECF No. 56–9. In her statement, Ms. Osborne said that she saw O.G. throw his book bag down and proceed to hit another student. While Ms. Osborne reported that another student involved in the altercation said to O.G., “[y]ou're fucking dead, faggot,” Ms. Osborne did not report hearing any racial insults. Id.

When this second incident was broken up, Vice Principal Pitts told O.G. to get medical attention in the nurse's office. PSM ¶ 31. O.G. returned from the nurse's office and told Vice Principal Pitts what happened. Vice Principal Pitts said she would investigate. Id. ¶ 32.

Later in the day, O.G. and his friends were confronted by a different group of students. This group of students called O.G. a “nigger pussy,” said they would “beat [O.G.'s] black ass,” and prevented O.G. from entering a classroom. DSM ¶ 16; PSM ¶ 34. There was no physical contact, but a staff member named Ms. Cohen separated the students. Id. In a statement written more than five months after the fact, Ms. Cohen stated that she did not hear the other student say anything to O.G. Id. ¶ 18; MSJ, Ex. G, ECF No. 11. Instead, Ms. Cohen heard O.G. shout at the other student. Id.

The students involved in this incident filled out incident reports reflecting the use of racially charged language. Opposition to Defendants' Motion for Summary Judgment, Exs. G–I, ECF Nos. 57–9, 57–10, 57–11. Asked how he could have handled the situation differently, one of O.G.'s friends wrote, “I don't know happened too many times before.” ECF No. 57–9. Vice Principal Pitts testified that when she spoke with students involved in the incident, they admitted to using the word “pussy” but denied using the word “nigger.” PSM ¶ 36. Without calling any parents, Principal Miron and Vice Principal Pitts decided to schedule a mediation session for the next morning. Id. ¶ 39.

C. January 9, 2009 Mediation

On January 9, 2009, Principal Miron and Vice Principal Pitts convened a mediation session with O.G. and some of the students involved in the previous day's altercations. During the session, the students voiced their grievances. According to Principal Miron's notes, the students were told to “stop pushing buttons.” MSJ, Ex. J, ECF No. 56–13. Principal Miron's notes indicate that the students at the session were told to see administrators for any individual discussions. Id. The notes also indicate that the students were advised of a “zero tolerance” policy regarding bullying. Id. Finally, the notes indicate that the students agreed to avoid confrontations and immediately report any “further occurrences.” Id. No students were disciplined as a result of the mediation. PSM ¶ 40.

According to his notes from the mediation, Principal Miron learned at the mediation that “these 2 groups have been feuding for months without reporting it.” MSJ, Ex. J. Similarly, Vice Principal Pitts's account of the mediation session states that “the soph [including O.G.]...