Doe, John v. Saint. Paul Conservatory for the Performing Arts
Filing
58
ORDER granting in part and denying in part 29 Motion to Alter/Amend/Supplement Pleadings(Written Opinion) Signed by Magistrate Judge Franklin L. Noel on 5/30/2018. (AAF)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
In re the matter of John Doe, by and
through his parents, James Doe and
Jane Doe,
Plaintiffs,
v.
Civil No. 17-5032 (DWF/FLN)
ORDER
Saint Paul Conservatory for the
Performing Arts,
Defendant.
______________________________________________________________
Margaret Kane for Plaintiffs.
Christian Shafer for Defendant.
______________________________________________________________
THIS MATTER came before the undersigned United States Magistrate Judge on Plaintiffs’
motion for leave to amend the complaint (ECF No. 29). For the reasons set forth below, Plaintiffs’
motion for leave to amend the complaint (ECF No. 29) is GRANTED in part, and DENIED in
part.
I. STATEMENT OF FACTS
1. Background
In September of 2017, John Doe began attending Saint Paul Conservatory for the Performing
Arts (“SPCPA”) as a sophmore. ECF No. 1 ¶ 10; ECF No. 38, Ex. 14 ¶ 10. On October 9, 2017,
John Doe was pulled out of class by the school’s guidance counselor, Ilah Raleigh, and informed
that female classmates had made allegations of harassment against him. Id. ¶ 12. Plaintiffs allege
that John Doe denied the allegations. Id. ¶ 13. Plaintiffs James Doe and Jane Doe, John Doe’s
parents, were called and informed that John Doe was being suspended immediately for sexual
harassment. Id. ¶ 15. They were also notified that John Doe had admitted to the allegations, and that
there was an earlier incident that had not been reported or investigated by the school. Id. ¶¶ 15, 17.
John Doe’s parents asked that the matter remain private, and according to Plaintiffs, both Ms.
Raleigh and SPCPA Director Ellen Delaney assured them that it would remain confidential and
would not affect John Doe’s college application. Id. ¶ 16. John Doe was suspended for three days.
Id. ¶ 15.
After his suspension, John Doe became the target of bullying. Id. ¶ 21. Students threatened
John Doe on social media, and an Instragram account was created protesting John Doe’s return to
school. Id. John Doe was also ostracized at school, with students refusing to sit near him or work
with him on projects. Id.
On October 12, 2017, Plaintiffs received John Doe’s Notice of Suspension, which stated that:
Three students have reported to Ms. Raleigh a pattern of harassment that [John Doe]
engaged in including inappropriate touch: sitting too close, touching without
permission, grabbing a student’s leg by the crotch, licking a student’s hand, grabbing
a student from behind and groping. Each student has communicated verbally and
non-verbally to [John Doe] that they want him to stop. In each case, he escalates his
behaviors.
Id. ¶ 29.
The parties, along with their attorneys, met on October 16, 2017, before John Doe’s return
to school. ECF No. 38, Ex. 14 ¶ 24. During the meeting, Plaintiffs were asked to sign a document
which stated:“If [John Doe] were to violate these policies in the future, he would received the
following discipline: 2nd offense, within one calendar year: Expulsion.” Id. Plaintiffs allege that they
challenged the allegations and asked for all information related to the claims against John Doe. Id.
SPCPA provided Plaintiffs with Ms. Raleigh’s notes related to the incident, and John Doe was
permitted to return to school. Id. ¶ 24, 26. An adult monitor was also put in place due to the social
media threats. Id. ¶ 26.
On October 25, 2017, a group of individuals protested John Doe’s return to school. Id. ¶ 33.
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The protestors were featured on the evening news, and it was reported that more students had made
allegations of sexual harassment against John Doe, and that SPCPA was working with law
enforcement and the Minnesota Department of Education to address the issue. Id. ¶ 34. On October
26, 2017, John Doe stopped attending SPCPA, and started attending an online school before
transferring to a public school. Id. ¶ 43.
2. School Policies
SPCPA’s Student and Parent Handbook permits the removal from class or dismissal of a
student where the students conduct is “significantly disrupting students’ rights to an education;
disrupting the ability of school personnel to perform their duties; disrupting school-sponsored
activities; engaging in conduct that endangers other pupils or surrounding persons (including school
district employees or property of the school)” or “significantly interfering with a teacher’s ability
to teach or communicate effectively with students in a class or interfering with other students’ ability
to learn.” Id. ¶ 18; ECF No. 38, Ex. 3 at 22. The Handbook further provides where action is taken
against a student, as a result of a breach of established policies, the student is entitled to due process
as defined by various Minnesota Statutes, and the student will be provided an opportunity to have
a hearing if the action is either exclusion or expulsion. Id. ¶ 36 , Ex. 3 at 21.
Further, SPCPA Policy No. 102 ensures that all students at SPCPA receive equal educational
opportunity in all areas of education including academics, course work, co-curricular and
extracurricular activities, or other rights or privileges of enrollment. ECF No. 38, Ex. 13 ¶ 41.
SPCPA Policy No. 103 outlines the procedure for reporting and investigating a complaint. Id.
SPCPA also has a Harassment and Violence policy which provides that the school prohibits
any form of harassment or violence on the basis of race, color, creed, religion, national origin, sex,
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gender, age, marital status, familial status, status with regard to public assistance, sexual orientation,
or disability. ECF No. 38, Ex. 14 ¶ 39; ECF No. 38, Ex. 9 at 1. It defines harassment as any physical
or verbal conduct, including electronic communications, that interferes with a students educational
performance, or otherwise adversely affects their educational opportunities. ECF No. 38, Ex. 9 at
2. Under the policy, anyone who believes they have been a victim of harassment or violence is to
report it to the principal, who is required to ensure that the procedures entailed in the harassment and
violence policy are fairly and fully implemented. ECF No. 38, Ex. 14 ¶ 41; ECF No. 38, Ex. 11 at
5. Upon receipt, the principal is to notify the superintendent immediately, without screening or
investigating the report. Id. The superintendent, within three days of receipt of the complaint, shall
began an investigation into the alleged conduct, and in determining whether the alleged conduct
constitutes a violation of the Harassment and Violence policy, may consider past incidents, the
context of the alleged incident, and all the facts and surrounding circumstances. Id. ¶ 41, 43; id. at
7. During the process, the alleged perpetrator shall be allowed the opportunity to present a defense
during the investigation and prior to any imposition of discipline. Id. Once the investigation is
complete, the superintendent shall provide the complaining party the outcome of the investigation
in writing. Id. ¶ 42; id.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 15 governs the amendment of pleadings in federal actions.
The Rule provides that a party may amend its pleading once as a matter of course within 21 days of
service, otherwise only with either the opposing party’s written consent or with the court’s leave.
See Fed. R. Civ. P. 15(a). “The court should freely give leave when justice so requires.” Fed. R. Civ.
P. 15(a)(2). However, there is no absolute right to amend. See Foman v. Davis, 371 U.S. 178, 182
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(1962); see also Ferguson v. Cape Girardeau Cnty., 88 F.3d 647, 650–51 (8th Cir. 1996). The court
may deny a request for leave to amend the pleadings, where there is “undue delay, bad faith on the
part of the moving party, futility of the amendment or unfair prejudice to the opposing party.”
Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987).
Under this framework, “[d]enial of a motion for leave to amend on the basis of futility means
the district court has reached the legal conclusion that the amended [pleading] could not withstand
a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Zutz v. Nelson,
601 F.3d 842, 850 (8th Cir. 2010). In analyzing the adequacy of a complaint under Rule 12(b)(6),
the court must construe the complaint liberally and afford the plaintiff all reasonable inferences to
be drawn from those facts. See Turner v. Holbrook, 278 F.3d 754, 757 (8th Cir. 2002). For the
purpose of a motion to dismiss, facts in the complaint are assumed to be true. In re Navarre Corp.
Sec. Litig., 299 F.3d at 738. To avoid dismissal under Rule 12(b)(6), a complaint must allege facts
sufficient to state a claim as a matter of law and may not merely state legal conclusions. See
Springdale Educ. Ass’n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998). A plaintiff must
provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A pleading must contain
enough facts to state a claim for relief that is “plausible on its face,” and a claim has facial
plausibility only when the plaintiff pleads factual content that allows the court to draw a reasonable
inference that the defendant is liable for the misconduct alleged. Id. at 570; Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The plausibility standard is not akin to a “probability requirement,” but it calls
for more than a sheer possibility that a defendant has acted unlawfully. Iqbal, 556 U.S. at 678.
IV. CONCLUSION OF LAW
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Plaintiffs seek to amend their Complaint to add one count pursuant to Title IX of the
Education Amendments of 1972, 20 U.S.C. § 1681, and one count of negligence. See ECF No. 38,
Ex. 15 at 177–85. Plaintiffs assert that in seeking to amend their Complaint, there is no undue delay,
Plaintiffs have not engaged in bad faith, and the proposed amendments are not futile. ECF No. 37
at 21–22. Further, with regard to their Title IX claim, Plaintiffs argue that they have alleged
sufficient facts to support their claim that SPCPA was deliberately indifferent to John Doe’s rights
under Title IX, and Plaintiffs are able to show that SPCPA engaged in a persistent pattern onof
denying John Doe the same protections as his accusers. Id. at 20. Similarly, Plaintiffs argue that they
have met the pleading standard for their claim of negligence by properly alleging that SPCPA owed
John Doe a duty of care as set forth in their policies and procedure, that SPCPA breached that duty
of care, and its breach resulted in substantial damage to the Plaintiffs. Id. at 21. SPCPA asks the
Court to deny Plaintiffs’ motion to amend because Plaintiffs amendments are futile.
1. Title IX Claim
Plaintiffs seek to amend their Complaint to include facts and claims related to SPCPA’s
actions or failures under its Title IX policies. Plaintiffs claim that SPCPA: (1) did not publish its
Title IX regulations or make them available to John Doe and his parents; (2) did not follow its own
Title IX policies in investigating the allegations against John Doe; and (3) did not follow its Title
IX policies with regard to John Doe’s own complaints of harassment and violence. See ECF No.
37. SPCPA responds that there is no private right of action for technical violations of Title IX
regulations, and as such, Plaintiffs claims related to SPCPA’s alleged violations of its Title IX
policies is futile. See ECF No. 44.
“Title XI states ‘[n]o person in the United States shall, on the basis of sex, be excluded from
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participation in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance.’” Doe v. Univ. of St. Thomas, 240 F.
Supp. 3d. 984, 989 (Dist. Minn. 2017) (quoting 20 U.S.C. § 1681(a)). However, “Title IX is not an
invitation for courts to second-guess disciplinary decisions of colleges or universities.” Univ. of St.
Thomas, 240 F. Supp. At 989.. “Title IX should be construed to give ‘[s]chool administrators . . .
the flexibility they require’ to initiate a reasonable disciplinary response.’” Id.
“In Gebser v. Lago Vista Independent School District, the Supreme Court noted that it had
‘never held . . . that the implied private right of action under Title IX allows recovery in damages
for violation of . . . administrative requirements.’” Id. (quoting Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 292 (1998)). Specifically noting that a school districts “failure to promulgate
a grievance procedure does not constitute ‘discrimination’ under Title IX” but that “the Department
of Education could enforce the requirement administratively.” Gebser, 524 U.S. at 292. Based on
this holding, Plaintiffs Title IX claim, in so far as it relies solely on violations of regulations
promulgated under Title IX, is futile. See Doe, 240 F. Supp. 3d at 989. Put differently, under Gebser,
even if this Court was to find that Plaintiffs have made a plausible claim that SPCPA failed to meet
the regulatory requirements of Title IX, they would have no private right of action for such
violations, and thus, their claim based on those facts would be futile. The Court’s analysis does not
end there.
Plaintiffs also claim SPCPA denied John Doe the protections of Title IX in their disciplinary
process. See ECF No. 37. Title IX claims based on disciplinary proceedings can be analyzed under
either the erroneous outcome standard, the deliberate indifference standard, the selective
enforcement standard, or the archaic assumptions standards. Stenzel v. Peterson, Civ. No. 17-580
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(JRT/LIB), 2017 WL 4081897 at *4 (D. Minn. Sept. 13, 2017). “To allege a Title IX claim based
on a disciplinary proceeding under either erroneous outcome or deliberate indifference theory,
[plaintiffs] must plausibly allege circumstances suggesting gender bias motivated [the school]’s
disciplinary proceedings.” Univ. of St. Thomas, 240 F. Supp. 3d at 990. “[A] plaintiff alleges a Title
IX deliberate indifference claim by ‘demonstrat[ing] . . . an official of the institution who had
authority to institute corrective measures had actual notice of, and was deliberately indifferent to,
the misconduct’ direct at the plaintiff.” Id. at n.2. A selective enforcement claim “asserts that,
regardless of the student’s guilt or innocent, the severity of the penalty and/or the decision to initiate
the proceeding was affected by the student’s gender.” Yusuf v. Vassar Coll., 35 F. 3d 709, 715 (2nd
Cir. 1994). “The ‘archaic assumptions’ standard, which has been applied where plaintiffs seek equal
athletic opportunities, finds discriminatory intent in actions resulting from classifications based upon
archaic assumptions.” Mallory v. Ohio Univ., 76 Fed. Appx. 634, 638 (6th Cir. 2003).
Plaintiffs allege in their Amended Complaint that SPCPA denied John Doe the protections
of its Title IX policy by immediately reaching the conclusion that he was guilty, without properly
investigating the claim, because of his gender and the archaic notions of gender and sex. ECF No.
13 ¶ 38. Further, that female students accused of sexual harassment are provided additional due
process procedures denied to John Doe, id. ¶ 41, and that SPCPA ignored John Doe’s reports of
harassment and bullying because he was male. Id. ¶ 46.
The Court finds that Plaintiffs’ claims are conclusory, and fail to allege any plausible facts
to support their claim that SPCPA’s disciplinary proceedings, or its decision to initiate the
disciplinary proceeding, was motivated by John Doe’s gender as opposed to the allegations of
sexual harassment made by his peers. Additionally, Plaintiffs’ claim that SPCPA treated other
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female students more favorable than John Doe is insufficient to show that John Doe’s disparate
treatment was because of his sex. See Univ. of St. Thomas, 240 F. Supp. 3d at 991 (quoting Salau
v. Denton, 139 F. Supp. 3d 989, 999 (W.D. Mo. 2015)). Because “[d]emonstrating that a [school’s]
official is biased in favor of the alleged victims of sexual assault claims, and against the alleged
perpetrators, is not the equivalent of demonstrating bias against male students.” Sahm v. Miami
Univ., 110 F. Supp.3d 774, 778 (S.D. Ohio 2015). As such, Plaintiffs Amended Complaint is wholly
void of any facts to support a claim under Title IX. Plaintiffs’ Title IX claim is futile and would not
survive a motion to dismiss.
Therefore, Plaintiffs’ motion for leave to amend their Complaint to add a claim under Title
IX is denied.
2. Negligence Claim
Plaintiffs also seek to bring an additional claim of negligence. Plaintiffs allege that SPCPA
owed John Doe a duty of care, and as a result of SPCPA’s breach of that duty of care, John Doe
suffered injury.
For a claim of negligence to survive a motion to dismiss, plaintiff must allege that: (1) the
defendant owed them a duty of care; (2) that the defendant breached that duty; (3) that plaintiff
suffered an injury; and (4) defendant’s breach of the duty of care was the proximate cause of
plaintiff’s injury. Univ. of St. Thomas, 240 F. Supp. 38 at 994 (citing Glorvigen v. Cirrus Design
Corp., 816 N.W.2d 572, 585 (Minn. 2012)); see also Lubbers v. Anderson, 539 N.W.2d 398, 401
(Minn. 1995). “Minnesota law follows the general common law rule that a person does not owe a
duty of care to another—e.g., to aid, protect or warn that person—if the harm is caused by a third
party’s conduct.” Id. at 995 (quoting Doe 169 v. Brandon, 845 N.W.2d 174, 177–78 (Minn. 2014)).
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However, schools have a duty to use reasonable care to protect their students. See Kingsley v. Indep.
Sch. Dist. No. 2, Hill City, 251 N.W.2d 634, 635 (Minn. 1977); Fallin v. Maplewood–North St. Paul
Dist. No. 622, 362 N.W.2d 318, 321 (Minn. 1985).
Construing the Amended Complaint in a light most favorable to the Plaintiffs, the Court finds
that Plaintiffs’s Amended Complaint sufficiently alleges that (1) SPCPA owed John Doe a duty of
care based on its own policies and procedures; (2) SPCPA breached its duty of care to John Doe;
(3) John Doe sustained injuries; and (4) SPCPA’s breach was the proximate cause of John Doe’s
injuries. ECF No. 38 at ¶¶ 97–99. SPCPA, nevertheless, argues that Plaintiffs’ amendment is futile
because SPCPA is entitled to official immunity.
Minnesota’s common law “doctrine of official immunity provides that ‘a public official
charged by law with duties which call for the exercise of his judgment or discretion is not personally
liable to an individual for damages unless he is guilty of a willful or malicious wrong.’” Anderson
v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004). Additionally, “if a
public official is found to be immune from suit on a particular issue, his or her government employer
will be vicariously immune from a suit arising from the employee’s conduct and claims against the
employer . . . .” Id. Put differently, where official immunity protects a public official, vicarious
official immunity protects the public agency that employs that official. See Schroeder v. St. Louis
Cnty, 708 N.W.2d 497, 508 (Minn. 2006) (extending vicarious official immunity to public entities).
Official immunity, however, does not protect a public official “when they are charged with the
execution of ministerial, rather than discretionary, functions, that is, where ‘independent action’ is
neither required nor desired.” Anderson, 678 N.W.2d at 655. Public officials are also not entitled
to official immunity for discretionary decisions where the officials acted willfully or with malice.
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Id. at 662.
At this stage of the proceeding, construing the Plaintiffs’ Amended Complaint liberally, and
affording Plaintiffs all reasonable inferences in their favor, the Court finds that Plaintiffs have
alleged sufficient facts to survive a motion to dismiss. Further, SPCPA’s claim of official immunity
does not compel the denial of Plaintiffs’ motion to amend. At best, SPCPA’s official immunity
defense creates a genuine issue of material fact regarding whether SPCPA’s officials acts willfully
or with malice. Therefore, Plaintiffs’ motion to amend is granted as to their claim of negligence.
IV. ORDER
Based upon all of the files, records, and proceedings herein, IT IS HEREBY ORDERED
that Plaintiffs' motion for leave to amend is GRANTED in part and DENIED in part, as follows:
1. Plaintiff's motion for leave to amend is DENIED as to Count III.
2. Plaintiffs' motion for leave to amend is GRANTED as to Count IV.
DATED: May 31, 2018
/s/ Franklin L. Noel
FRANKLIN L. NOEL
United States Magistrate Judge
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