Kuhr v. Millard Pub. Sch. Dist.

CASSIE KUHR and NICK KUHR, by and through their Motherand Next Friend, JEANNE KUHR, and DAN KUHR, Plaintiffs,

v. MILLARD PUBLIC SCHOOL DISTRICT, and DR. KEITH LUTZ, inhis capacity as Superintendent of Millard Public Schools, Defendants.

CASE NO. 8:09CV363

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

Dated: November 8, 2011

MEMORANDUM AND ORDER

This matter is before the Court on the Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Filing No. 56) filed by Defendants Millard Public School District (MPSD) and Dr. Keith Lutz. The Court has considered the parties' briefs (Filing Nos. 57 and 70) and the accompanying indexes of evidence (Filing Nos. 58, 71, 72, and 73). For the reasons discussed below, Defendants Motion will be denied.

FACTUAL BACKGROUND

Defendants have moved for dismissal under both Rule 12(c) and Rule 56, but the Court will address the factual background under only the Rule 56 standard, because Defendants' Rule 12(c) motion is a "factual attack" on Plaintiff's claim.¹ The following uncontroverted facts are those stated in the briefs that are supported by pinpoint citations to the record, that the parties have admitted, or that the parties have not properly resisted, as required by NECivR 56.1 and Federal Rule of Civil Procedure 56.

In the 1990s, in response to concerns over increasing incidents of gang violence, school districts, including MPSD, took steps to address the presence of gangs within schools. By 2001, the administration of Millard South High School (MSHS) was aware of the influence of several gangs within the school. Since at least 2001, police officers briefed the faculty and staff of MSHS on gang culture and gang identifiers, such as the wearing of specific colors or apparel. Several years prior to the events at issue in this case, MPSD had implemented policies prohibiting students from wearing gang-related clothing or symbols.

Defendants submitted an affidavit from Officer Bruce Ferrell, who served in the Omaha Police Department from 1988 to 2008, and in the Gang Intelligence Unit from 1999 until his retirement in January of 2008. (Filing No. 58-2, Affidavit of Bruce Ferrell ("Ferrell Aff."), at ¶ 2.) As part of his duties, Officer Ferrell provided training to MPSD staff in recognizing gang identifiers. (Id. at ¶ 8.) According to Officer Ferrell, gang members often wore t-shirts in honor of other members who had been "'killed in the line of duty.'" (Ferrell Aff., at ¶ 4.) Such shirts bore the words "RIP" and the gang member's name, along with a picture and the dates of birth and death. (Id.) Officer Ferrell covertly observed many gang funerals from 1997 to 2007 and saw such t-shirts at these funerals. (Id.) He stated that, in his experience, such shirts "have been worn almost exclusively by gang members or related gang associations." (Id.) Officer Ferrell shared this information with MPSD staff during his presentations, and also warned staff that such shirts could provoke a response from rival gang members. (Id. at ¶¶ 7-10.)

MSHS was not spared from gang problems. The former principal of MSHS, Jon Lopez, recounted a prior incident (he could not recall the date) where he and the StudentResource Officer had been forced to intervene when two adult members of a local gang walked through security, seeking to intimidate and possibly harm a student. (Filing No. 581, Affidavit of Jon Lopez, at ¶ 9.) Megan Weber, a teacher at MSHS, stated that once, during the 2006-2007 school year, she had to break up a confrontation between two students who were members of rival gangs, because they were yelling at each other and threatening violence. (Filing No. 58-4, Affidavit of Megan Weber ("Weber Aff."), at ¶ 4.) Dr. Curtis Case, the principal of MSHS since 2006, recalled only one incident where "RIP" shirts had been worn at the school. (Filing No. 58-3, Affidavit of Curtis Case ("Case Aff."), at ¶ 6.) He could not recall when it had occurred, but stated that "a couple" of students wore shirts to school that honored a relative who had been "killed as part of a gang related crime." (Id.) The students complied when they were asked to remove the shirts, and there were no disruptions related to this incident.

On June 15, 2008, Julius Robinson, a young man and former MSHS student, was shot and killed by Daniel Miller, a former student of Millard West. Omaha media covered Robinson's murder extensively. Defendants have submitted copies of several news reports. (Filing No. 58-3, Case Aff., Exh. 1-8, at 13-27.) The faculty at MSHS were generally aware of these reports.

According to these reports,² the man that killed Robinson was a member of the "Omaha Mafia Bloods" (OMB), a group considered by Omaha police to be a street gang. (Id., Exh. 2, at 14; Exh. 3, at 17.) In these reports, a city official and the father of one of the gang members expressed concerns about the group's propensity for violence. (Id.,Exh. 3, at 17.) Robinson's friends indicated that there was a running feud between Robinson and members of OMB, many of whom had previously attended MSHS. (Id., Exh. 2, at 15.) Robinson allegedly wrote "Fuck OMB" on his MySpace page, and a member of the OMB posted a threat in response. (Id.)

Robinson's friends and family disagreed about whether Robinson had been involved with gangs. (Id., Exh. 2, at 14-15; Exh. 3, at 18.) While his family maintained he had never been a part of any gang, some of his friends indicated he had once been a member of OMB, or at the very least, friends with some of its members. (Exh 3, at 18.) These friends stated that Robinson had recently stopped associating with the members of OMB, which may have been taken as "disrespect." (Id.) Robinson and his friends formed a group named "Loc'ed Out Criminals" or "LOC 228." (Id.) His friends indicated this was not an actual criminal gang, but simply a close group of friends who watched out for one another, and, in fact, tried to encourage other Millard children to leave gangs. (Id.) Police officials stated, however, that the group used many of the styles and trappings of street gangs. (Id.)

Plaintiff Dan Kuhr was close friends with Robinson for several years before his murder, and Robinson's death was quite difficult for Dan. Dan and his mother, Jeanne Kuhr, held a car wash and fish fry, and contributed the income to Robinson's family to help pay for funeral expenses. Dan also created memorial t-shirts, key chains, and wristbands, which were sold to raise funds for Robinson's family.

The front of the memorial t-shirt contained two pictures of Robinson, one of him in his Millard football uniform, and another of him smiling and speaking on a phone. (FilingNo. 71, Exh. B, Affidavit of Dan Kuhr ("Dan Aff."), at ¶¶ 6-7.) In the background was the number "33," which had been Robinson's football number. (Id.) Above this was the text, "Julius, RIP, 6-8-90, 6-15-08." (Id.) On the back of the shirt were the words "Only God Can Judge Me Him Now!" (Id.) The wristbands and key-chains that Dan designed said simply, "In Loving Memory, Julius Robinson, #33." (Id. at 10-11.)

Dan Kuhr did not intend the design of the shirt to convey any sort of gang-related message or to act as a "'call-out'" to any gang. (Id. at ¶ 8.) He has never been a part of any gang, and only designed the shirt to help raise money for the Robinson family. (Id.) Dan's brother and sister, Plaintiffs Nick and Cassie Kuhr, were not members of any gang or affiliated with any gang.

When the 2008 school year began in August, Dan was enrolled as a senior at the Millard Learning Center (a separate school that is part of MPSD). Throughout August, Dan wore one of the memorial shirts to school on several occasions without incident. Dan's brother, Nick, was at that time enrolled as a freshman at MSHS. Nick also wore a memorial shirt to school six or seven times in the weeks prior to August 27, 2008. Dan, Nick, and their sister Cassie, who was also enrolled at MSHS, also wore the wrist-bands to school on several occasions, also without incident.

On August 27, Megan Weber noticed (for the first time) that Nick was wearing the shirt in her class. She believed that the shirt might be gang-related and sent an e-mail to the Assistant Principal, Brad Millard, that stated she was "worr[ied] that it showed gang ties." (Filing No. 58-4, Weber Aff., Exh. 1.) Weber had attended Robinson's funeral and while there had noticed many people wearing such shirts. She concluded the shirt wasgang-related, based on the training she had received in recognizing gang identifiers, and because she "was aware of media reports alleging Julius Robinson was a member of the LOC 228 street gang." (Id. at ¶¶ 2, 5-6.)

That day, MSHS administrators informed Nick that he would have to stop wearing the shirt, as it violated the school policy forbidding gang-related apparel. He was given the option of wearing another shirt over it or turning it inside-out. Nick refused, and later that day, MSHS administrators met with him, as well as Jeanne and Dan Kuhr, to discuss the situation. Nick still refused to remove the shirt, and his mother took him home for the remainder of the day. Later that same day, MSHS administrators were told that Cassie Kuhr was encouraging other students to wear the shirts the following day. Later that afternoon, Principal Case was informed that School Resources Officers in Omaha Public Schools did not allow students to wear "RIP" t-shirts for concern over their possible gang affiliations. On the morning of August 28, Case learned that the Omaha Police Department Gang Unit considered such shirts to be gang-related and considered Julius Robinson to have gang ties. On August 28, several students, including Nick Kuhr, showed up to school wearing the memorial shirts or with "RIP" written on their arms in ink. Five students were suspended for one day for refusing to change their shirts or wash off the writing. Nick was suspended for two days. At some point that day, Weber overheard...