Swisher v. Jersey Shore Area Sch. Dist. Bd. of Directions

1

JENNA SWISHER and REGINALD GALLMAN, individually and as parents and natural guardians of F.G., their minor child, Plaintiffs. v. JERSEY SHORE AREA SCHOOL DISTRICT BOARD OF DIRECTORS, et al., Defendants.

No. 4:22-CV-01120

United States District Court, M.D. Pennsylvania

May 11, 2023

MEMORANDUM OPINION

MATTHEW W. BRANN, CHIEF UNITED STATES DISTRICT JUDGE.

Racial discrimination is odious and promotes deleterious effects that reach far beyond the victim of such acts. This is especially true in a school setting that is populated by vulnerable children whose current and future education and consequently, career prospects and earning capacities may be endangered by a failure to protect those children. Any failure to protect students from such harassment constitutes a dereliction of the educators' responsibilities to the students and the community at large. Plaintiffs here allege just such a dereliction of duty in the face of a school environment that contains racial animus and overtly racist acts perpetuated by at least some of the student body.

However disturbing any racism in a school setting may be, not every instance of racial harassment by a student or every failure to act by school employees creates a constitutional violation. Here, the allegations fail to establish that Defendants were aware of many of the instances of racial harassment referenced in the amended complaint, or that the school district acted with deliberate indifference to that harassment. Consequently, the allegations do not demonstrate a violation of anyone's rights, and the amended complaint will be dismissed.

I. BACKGROUND

A. Procedural History

In November 2022 Plaintiffs filed an amended complaint alleging that Defendants, all of whom are associated with the Jersey Shore Area School District (“JSASD”), violated F.G.'s rights by failing to take appropriate action to prevent racial harassment directed toward F.G. at her school, which is a part of the JSASD.^[1]Plaintiffs raise claims for a violation of the Equal Protection Clause of the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983, a violation of the Due Process Clause of the Fourteenth Amendment, pursuant to § 1983, and a violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.^[2]

Presently before the Court are Defendants JSASD, Jersey Area School District Board of Directors, Brian T. Ulmer, Steven Keen, Elizabeth Seagraves, and Kenneth

Dady's (collectively “Defendants”) motion to dismiss Plaintiffs' amended complaint.^[3] This motion, having been fully briefed,^[4] is ripe for disposition. For the following reasons, the Court will grant Defendants' motion.

B. Facts^[5]

Plaintiffs' child, F.G., was a middle school student at JSASD in 2018 when she began experiencing racial discrimination and harassment-both explicit and implicit-at school.^[6] The first event occurred in October of 2018, when another student asked F.G. “when does your dad get out of jail?”^[7] When F.G. expressed shock at the comment and replied that her father was not in jail, the other student responded “well, your dad is black and I thought that all black kids' dads are in jail.”^[8]Shortly thereafter, the same student began referring to F.G. as “Tanya” because he felt that “Tanya is a black girl name.”^[9]

In February 2019, a group of students approached F.G. in the school's cafeteria and began singing “Baa Baa Black Sheep;” F.G. believed that this carried racially discriminatory undertones.^[10] F.G. reported this incident to JSASD shortly after it occurred.^[11] In August 2020, a student wore a “Trump 2020” mask to school, but JSASD took no action after the incident was reported to it.^[12] In February 2021, a student threatened F.G. during gym class, swung a metal water bottle at F.G., and stated “I am going to drag you.”^[13] This incident was reported to JSASD the following day.^[14]

In October 2021, F.G. “experienced racial slurs” at school, including an incident when two students, A.D. and G.P., approached F.G., with A.D. then stating “dang, bro, this schools [sic] is full of a bunch of n******,” to which G.P. laughed.^[15]F.G. reported this incident to Ulmer, JSASD's superintendent, shortly after it occurred.^[16] After F.G. informed her parents of this incident, a school officer at JSASD asked why F.G. had informed her parents and stated “[t]hat's like throwing something on the wall and hope [sic] it sticks.”^[17]

On several occasions in November of 2021, F.G. witnessed two students in her Spanish class, E.S. and J.S., call a different African American student a “negro”; those students also inquired whether referring to “Black Friday” as “Negro Viernes” was offensive to that student.^[18]

On December 9, 2021, F.G. was walking to class alongside another African American student, A.B., when J.L. walked between those two students and “started screaming the ‘n-word' at” F.G. and A.B.^[19] A.B. informed J.L. that it was unacceptable to use that slur, to which J.L. responded that “it was okay for him to say, because he had the ‘N pass.'”^[20] F.G. met with school officials regarding this incident, and other students then began referring to F.G. as a “snitch.”^[21] Ulmer investigated this incident and asked F.G. whether J.L. felt “okay saying those words [n-word] because he had the ‘n pass?'”^[22] F.G. informed Ulmer that the “n-pass” did not exist, and it was never acceptable to use that slur.^[23]

In March 2022, a student, “E,” threw a banana at an African American student “and chanted the word ‘n*****' at the” African American student.^[24] For this behavior, E received an in-school suspension.^[25] Two days later, E was sitting behind F.G. in class when he began to throw things into F.G.'s hair “and whispered the word ‘n*****' to” F.G.^[26] After F.G. turned to face E, E turned to another African American student and began “chanting the word ‘n*****'” toward that student.^[27]This behavior resulted in no action from JSASD.^[28] The very next day in the same class, E “called a male African American student the ‘n-word' repeatedly during class” and, again, no action was taken by the teacher or JSASD.^[29] Less than one week later, a different student called F.G. a monkey; that student had previously called F.G. “black trash.”^[30]

F.G. continues to attend school at JSASD “and is subjected to racial discrimination on an ongoing and continuous basis.”^[31] Despite having received reports of racial discrimination, Defendants never disseminated any message regarding the racial discrimination, harassment, and retaliation that occurred, nor did they ever “convene[] or attempt[] to convene a presentation or further training for the student body or staff” regarding bullying, racial discrimination, harassment, or retaliation.^[32]

II. LAW

Under Federal Rule of Civil Procedure 12(b)(6), courts dismiss a complaint, in whole or in part, if the plaintiff fails to “state a claim upon which relief can be granted.” Following the landmark decisions of Bell Atlantic Corp. v. Twombly^[33] and Ashcroft v. Iqbal,^[34] “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”^[35] The United States Court of Appeals for the Third Circuit has instructed that “[u]nder the pleading regime established by Twombly and Iqbal, a court reviewing the sufficiency of a complaint must take three steps”: (1) “take note of the elements the plaintiff must plead to state a claim”; (2) “identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth”; and (3) “assume the[] veracity” of all “well-pleaded factual allegations” and then “determine whether they plausibly give rise to an entitlement to relief.”^[36]

III. ANALYSIS

Defendants argue that all of Plaintiffs' claims complaint must be dismissed.^[37]The Court will therefore address each claim in turn.

A. Equal Protection Claim

First, Defendants contend that the Equal Protection claim should be dismissed because the allegations contained in the amended complaint are insufficient to establish that JSASD created a custom or policy that encouraged bullying, or that the incidents were reported to individuals with decision making authority.^[38]Moreover, Defendants argue that Plaintiffs have failed to plead the violation of a constitutional right, as the United States Constitution does not compel schools to intervene to prevent bullying.^[39] Defendants further contend that there are no allegations against three of the individual defendants, and there are no allegations that would permit the inference that the individual defendants had knowledge of the racist bullying campaign to which F.G. was subjected and, in any event, the individual defendant would be entitled to qualified immunity.^[40]

1. Individual Defendants

Pursuant to 42 U.S.C. § 1983, individuals may bring a cause of action for damages related to the infringement of their rights under the United States Constitution.^[41] A basic tenet of § 1983 is that, in order to state a viable claim “a plaintiff must establish an underlying constitutional violation.”^[42] As to whether Plaintiffs have adequately pled a violation of F.G.'s constitutional rights under the Equal Protection Clause, the Court concludes that they have not. As an initial matter, while Defendants rely upon a number of cases that hold state schools do not violate the Fourteenth Amendment's Due Process Clause by failing to protect students from bullying, those cases are inapposite to a claim under the Equal Protection Clause.^[43] Rather, as one court within this Circuit has recently recognized, “the Third Circuit has not addressed whether the [F]ourteenth [A]mendment's [E]qual [Protection [C]...