Crawford et al v. Deer Creek Public Schools et al

Filing 13

ORDER granting 8 Motion to Dismiss, as more fully set out. Signed by Honorable David L. Russell on 1/13/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JASON AND AMANDA CRAWFORD
PARENTS OF MINOR CHILD (Z.C.),

)
)
)
Plaintiffs,
)
)
-vs)
)
DEER CREEK PUBLIC SCHOOLS,
)
KRISTY VAN DORN, RANET TIPPENS, )
DR. JAMES ROSE, JOHN ROBERTSON, )
KENNETH DENNIS, DANNY BARNES,
)
JERROD ROBERTS, JASON ZALOUDIK )
and MELISSA JORDAN,
)
)
)
Defendants.
)

CIV-16-751-R

ORDER
Plaintiffs Jason and Amanda Crawford, on behalf of their minor child, Z.C., bring
suit against Deer Creek Public Schools, its various administrators, and members of the
school board for alleged civil rights violations against their child. Defendants have
moved to dismiss for failure to state a claim. (Doc. 8). For the reasons that follow,
Defendants’ motion to dismiss is GRANTED.
I.

Background

What started as a middle school’s investigation into a sexual assault by a student
has now careened into a civil rights dispute.

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That investigation began when Kristy Van Dorn, Principal of Deer Creek Middle
School, learned on the morning of January 20, 2016, that an incident had occurred in the
school’s practice gym the night before. According to a female student, she had heard a
noise in an adjoining locker room and upon investigating was sexually assaulted by a
male student, Z.C. Van Dorn immediately had the female student examined by the school
nurse, who found no signs of bruising, scrapes, or abrasions. And when Van Dorn
consulted video footage of the gym, it too yielded no evidence that there had been any
physical interaction between the students.
It looked as if only Z.C. could corroborate the female student’s story. But Z.C.,
when questioned by Van Dorn in her office, told her he did not want to talk about it. Nor
did he want to write a statement. Van Dorn eventually summoned Z.C.’s parents, Jason
and Amanda Crawford, to the school. On arrival they were told by Van Dorn that their
son had already admitted to the sexual assault and that the stories of Z.C. and his female
accuser matched. The Crawfords insist that at this point they were still in the dark
regarding the specific allegations against their son. Nonetheless, they had their son
provide a written confession, in no small part because Van Dorn suggested this would
reduce his punishment. But as it turns out, that punishment was not decided by Van Dorn.
Instead, Van Dorn apparently delegated that decision to the school Superintendent, Ranet
Tippens, who settled on a long-term suspension for Z.C.
The Crawfords appealed. Yet their appeal allegedly did not follow the normal
procedure of the Deer Creek Independent School District, which allegedly calls for
review by a committee only for suspensions of less than 10 days. Longer suspensions are
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apparently reviewed by the Superintendent or her designee. Nonetheless, the Crawfords’
appeal reached the review committee on January 28, 2016.
It was not until the hearing that the Crawfords first heard of the specific
allegations against their son. And contrary to what Van Dorn had told them at the school,
there appeared to be factual differences between the statements of Z.C. and the female
student. Attempting to highlight these differences, the Crawfords read instant messages
between the female student and Z.C. to the review panel. Yet the chairman of the panel,
Dr. James Rose, declined to investigate further.
Roughly a week passed before Z.C. was approached by the son of one of the
members of the review panel at a church youth group meeting. Melissa Jordan’s son told
Z.C. that he knew all about Z.C.’s disciplinary hearing and that the committee was going
to uphold his suspension, which turned out to be true. This did not stop the Crawfords
from seeking further review. Another hearing was held on March 10, 2016, but school
district’s board of education unanimously voted to uphold the suspension.
Now the Crawfords, on behalf of Z.C., argue that Defendants violated their son’s
federally secured rights under 42 U.S.C. § 1983. All Defendants have moved to dismiss
for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Defendants
have the better arguments. The Crawfords’ claims are dismissed.
II.

Standard of Review

“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short
and plain statement of the claim showing that the pleader is entitled to relief.’” Ashcroft
v. Iqbal, 556 U.S. 662, 677–78 (2009). “The pleading standard Rule 8 announces does
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not require ‘detailed factual allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Id. at 678 (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a pleading must
offer more than “labels and conclusions” and “a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 555. There must be “sufficient factual matter,
[which if] accepted as true . . . state[s] a claim to relief that is plausible on its face.” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A plausible claim is one that
“pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. A plaintiff must “nudge[] his claims
across the line from conceivable to plausible . . . .” Twombly, 550 U.S. at 570. Further,
the Court “must accept all the well-pleaded allegations of the complaint . . . and must
construe them in the light most favorable to the [non-moving party].” Thomas v. Kaven,
765 F.3d 1183, 1190 (10th Cir. 2014). Even still, if the allegations “do not support a legal
claim for relief,” then “as a matter of law” they must be dismissed. Baker v. Publishers
Clearing House, 413 F. App'x 85, 87 (10th Cir. 2011).
III.

Due Process Claims

The Crawfords’ single claim for violation of procedural due process is essentially
three: (1) that Van Dorn, Superintendent Tippens, and the review committee failed to
follow the policies and procedures adopted by Deer Creek Independent School District;
(2) that Van Dorn’s inaccurate portrayal of the female student’s and Z.C.’s versions of
events prohibited timely investigation and adequate preparation for the hearing before the
Review Committee; and (3) that, at some point or another, the Crawfords were victims of
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a biased review. But whether their due process claim is construed on one or all of these
grounds, none state a procedural due process claim.
“The Fourteenth Amendment forbids the state from depriving an individual of life,
liberty, or property without due process of law.” Couture v. Bd. of Ed. of Albuquerque
Pub. Sch., 535 F.3d 1243, 1256 (10th Cir. 2008). The procedural due process clause,
however, does not safeguard an infinite number of interests; rather, “[a] person alleging
that he has been deprived of his right to procedural due process must prove two elements:
that he possessed a constitutionally protected liberty or property interest such that the due
process protections were applicable, and that he was not afforded an appropriate level of
process.” Id. (internal quotes and citation omitted). By way of the Supreme Court’s
decision in Goss v. Lopez, public school students such as Z.C. enjoy protected property
interests in public education and are thus entitled to certain procedural due process
protections within the educational context. Id. (citing Goss, 419 U.S. 565, 574, 95 S.Ct.
729 (1975)). That does not mean that “every school disciplinary action gives rise to a
federal constitutional claim.” Hatch v. Goerke, 502 F.2d 1189, 1194 (10th Cir. 1974). Yet
when there is a “complete deprivation of education”—such as with a long term
suspension like in this case—“the student at minimum is entitled to ‘notice . . . and some
kind of hearing,’ though the ‘timing and content of the notice and the nature of the
hearing will depend on the appropriate accommodation of competing interests
involved.’” Couture, 535 F.3d at 1257 (citing Goss, 419 U.S. at 578–79).
If identifying whether there has been a deprivation is the first step, the second is
evaluating the adequacy of the procedure afforded. Unlike the case at hand, Goss dealt
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only with the procedural safeguards afforded to students who received short-term
suspensions—that is, those ten days or less. 419 U.S. at 575. And to be sure, the Tenth
Circuit has noted the limits of Goss. See Watson ex rel. Watson v. Beckel, 242 F.3d 1237,
1240 (10th Cir. 2001) (explaining that though Goss “sets the standard for procedural due
process owed to students facing short-term school suspension,” the case still “provides
some guidance,” particularly with its instruction that the competing interests and facts
involved will typically dictate the adequacy of whatever process was provided). And to
assess those interests, many appellate courts, the Tenth Circuit included, have simply
applied the balancing test of Matthews v. Eldridge, 424 U.S. 319 (1976), when
considering whether additional processes were warranted in cases dealing with long term
suspensions or expulsions. See Watson, 242 F.3d at 1240 (collecting cases).
Matthews’s balancing calls for a court to weigh: “(1) the private interest that will
be affected by the official action, (2) the probable value, if any, of additional or substitute
procedural safeguards, and (3) the government’s interest, including the fiscal and
administrative burden, that the additional or substitute procedural requirements would
entail.” Watson, 242 F.3d 1240 (citing Matthews, 424 U.S. at 334–335). Further, to
establish a denial of due process, a student must show substantial prejudice from the
allegedly inadequate procedure. In other words, the concern is whether additional
procedures would have been futile. Id.
With this in mind, all three allegations of due process deficiencies fail to state a
plausible claim. First, the Crawfords point to Deer Creek School District’s failure to
follow its own policies and procedures by using a committee composed of administrators,
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rather than the Superintendent herself, to review the Crawfords’ challenge to their son’s
suspension. That allegation alone, however, will not suffice to state a claim, since “even
in the disciplinary context, a school’s failure to comply with its own rules does not, in
itself, constitute a violation of the Fourteenth Amendment.” Brown v. University of
Kansas, 599 F.App’x 833, 838 (10th Cir. 2015); cf. White v. Salisbury Tp. Sch. Dist., 588
F.Supp. 608, 614 (E.D. Pa. 1984) (“[W]here a state has issued regulations requiring
school districts to promulgate and publish specific procedural rules and safeguards
governing suspensions, a failure to comply with those regulations would violate state law
only and would not rise to the level of a constitutional violation.”) (emphasis in original).
What matters is whether “the procedures afforded to [Z.C.] were fair as a matter of law.”
Brown, 599 F.App’x at 838. That fairness inquiry is at least implicated in the other two
ways in which Defendants allegedly ran roughshod over the Crawfords’ due process
rights: (a) Van Dorn’s inaccurately informing them on Jan. 20 that Z.C.’s and the female
student’s stories matched (resulting in the Crawfords being caught off guard when they
learned for the first time at the January 28 hearing that there were discrepancies); and (b)
that the review committee was biased.
The first argument fails as a matter of law. Clearly the Crawfords believe they had
inadequate time to prepare for the hearing before the Review Committee—a hearing held
eight days after Z.C. was suspended. Less clear is what further evidence they could have
unearthed that would have made a difference. Indeed, their Complaint offers nothing
besides the allegation that it was at the hearing on “January 28, 2016, for the first time
[that] Plaintiffs heard the specific allegations being made against their son” and that it
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was only then that they “became aware of factual differences existing in the two student’s
[sic] statements, contrary to the assertions of Van Dorn that their stories matched.” (Doc.
1, at 8). Nonetheless, Plaintiffs were still able to read messages between the female
student and Z.C. to demonstrate these alleged inconsistencies at the hearing. (Id.). The
Crawfords propose nothing else that would have aided them in their defense. “In light of
[this], further procedural safeguards would have added little.” Brown, 599 App’x at 837.
The

second

allegation—biased

review by

the committee—stems

from

Superintendent Tippens’s role as immediate supervisor of members of the review
committee. Thus, the theory goes, the committee members felt uneasy about reversing the
suspension allegedly imposed by Tippens. To be sure, school officials are doubtlessly
required “to insure ‘fundamentally fair procedures’ [in] deciding whether to exclude a
student from school . . . .” Heyne v. Metro Nashville Pub. Sch., 655 F.3d 556, 567 (6th
Cir. 2011) (quoting Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 927 (6th Cir.
1998)). But a school disciplinarian’s role in both investigation and ordering punishment
will not by itself render the process constitutionally deficient. Newsome, for example,
rejected a procedural due process claim that a school official’s dual role in investigating a
student’s suspected drug-trafficking and then expelling him rendered him biased per se.
842 F.2d at 927. In fact, several circuits have held that “due process is not necessarily
violated when the school official who initiates, investigates, or prosecutes charges against
a student plays a role in the decision to suspend the student.” Heyne, 655 F.3d at 567; see
also Lamb v. Panhandle Cmty. Unit. Sch. Dist. No. 2, 826 F.2d 526, 529–30 (7th Cir.
1987); Brewer by Dreyfus v. Austin Indep. Sch. Dist., 779 F.2d 260, 264 (5th Cir. 1985).
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And Goss at least implied that due process does not necessarily preclude a school official
who witnesses student misconduct from then deciding to suspend the student. Goss, 419
U.S. at 584 (“[A]n informal give-and-take between student and disciplinarian, preferably
prior to the suspension, will add little to the factfinding function where the disciplinarian
himself has witnessed the conduct forming the basis of the charge”).
Considering that, this much is certain: the review committee’s relationship with
Superintendent Tippens does not render the committee’s decision impartial per se. Nor is
it enough by itself to make this Court discard the “presumption of honesty and integrity”
to which school officials are entitled to “in their decisionmaking powers.” Velharticky v.
Indep. Sch. Dist. No. 3 of Roger Mills Cnty., Okla., 846 F.Supp. 941, 944 (W.D. Okla.
1993). The issue is whether the committee “had some personal or financial stake in the
decision that might create a conflict of interest . . . .” Hortonville joint Sch. Dist. No. 1 v.
Hortonville Ed. Ass’n, 426 U.S. 482, 491–92, 96 S.Ct. 2308 (1976). On these allegations,
there is not enough to create a plausible claim.
But suppose there was. Still, any conflict of interest plaguing the committee’s
review of Z.C.’s case would have been cured by the board of education’s subsequent
review of the committee’s decision. “Cases have consistently held that a violation of
procedural due process may be waived or cured.” U.S. Postal Serv. v. Nat. Ass’n of Letter
Carriers, 847 F.2d 775, 778 (11th Cir. 1988); see also Glenn v. Newmann, 614 F.2d 467,
472 (5th Cir. 1980), criticized on other grounds by County of Monroe, Florida v. U.S.
Dept. of Labor, 690 F.2d 1359, 1363 (11th Cir. 1982) (procedural due process violation
resulting from lack of adequate notice in pre-termination procedures was cured through
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subsequent post-termination public hearing); see also G.J.B. & Associates, Inc. v.
Singleton, 913 F.2d 824, 832 (10th Cir. 1990) (noting that even if the district court’s
imposing sanctions on an attorney for violating a court order had run afoul of due process
in its failure to provide the attorney notice and an opportunity to be heard, the court’s
subsequent hearing “was sufficient to cure the defect, if any, in the process [the attorney]
previously received.”)
Put differently, even if Van Dorn absconded from her duties to decide Z.C.’s
punishment; even if the Crawfords were actually inhibited from putting on their best
defense at the January 28 hearing; and even if that hearing was before impartial
administrators, any deficiencies in due process would have been cured by the board of
education’s subsequent review. And their review could not have been tainted by any
relationship to Tippens: the District’s Board of Education has the authority to hire and
fire the Superintendent under Oklahoma law. Okla. Stat. Ann. tit. 70, § 5-117.1 Nor have
the Crawfords pled any fact other than that the school board “failed to fully and
impartially investigate” the suspension that would give rise to a plausible claim. And the
Crawfords can hardly argue that they lacked time to prepare; the board of education’s
hearing took place more than 40 days following the committee’s review. Their procedural
due process claim is therefore dismissed.
IV.

Fifth Amendment Claim

1
“The board of education of each school district shall have power to . . . [c]ontract with and fix the duties
and compensation of . . . superintendents . . . and other necessary employees of the district.” Id. § 5117(A)(14); see also Oklahoma Accreditation Standard 210:35-3-48(a)(2) (“The local board shall be
responsible for the selection and evaluation of its chief executive officer who shall be the superintendent
or other designated head of the school system.”

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Aside from their procedural due process claim, the Crawfords point to an alleged
violation of Z.C.’s Fifth Amendment privilege against self-incrimination: Van Dorn’s
continued questioning of Z.C. in her office after he “expressed his desire not to speak.”
(Doc. 1, at 11). This too misses the mark.
The Fifth Amendment provides in part that “[n]o person ... shall be compelled in
any criminal case to be a witness against himself.” U.S. CONST. amend V. It guarantees
“the right of the person to remain silent unless he chooses to speak in the unfettered
exercise of his own free will, and to suffer no penalty . . . for such silence.” Weaver v.
Brenner, 40 F.3d 527, 534 (2d Cir.1994) (citing Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct.
1489, 12 L.Ed.2d 653 (1964)). “Miranda’s protections are not triggered, however, until
the suspect is both ‘in custody’ and subjected to ‘interrogation.’ C.S. v. Couch, 843
F.Supp.2d 894, 917 (N.D. Ind. 2011) (citing United States v. Barker, 467 F.3d 625, 628
(7th Cir. 2006)). “For the purposes of Miranda, a person is “in custody” when there is
“questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.” Id.
(emphasis added).
Courts have therefore distinguished between a student being questioned at school
by school officials as opposed to law enforcement officers. See e.g., S.E. v. Grant Cnty.
Bd. of Ed., 533 F.3d 633, 641 (6th Cir. 2008) (finding that an assistant principal who was
not acting at the behest of law enforcement officers and whose questioning of a student
occurred outside of the presence of law enforcement officers was not required to give the
student Miranda warnings). The Crawfords have not pointed the Court to any authority
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that holds otherwise. And indeed, the weight of authority undermines their claim. See
Salazar v. Luty, 761 F. Supp. 45, 47 (S.D. Tex. 1991) (finding the right against selfincrimination did not extend to a school security guard’s questioning a student); Jarmon
v. Batory, 1994 WL 313063 at *11 (E.D. Pa. June 29, 1994) (school administrator’s
questioning of a student regarding a school disciplinary issue did not require that a
Miranda warning be provided to the student); Pollnow v. Glennon, 594 F.Supp. 220, 224
(S.D.N.Y. 1984), aff’d 757 F.2d 496 (student’s claim that he was denied his Fifth
Amendment right against self-incrimination by school officials “need[ed] but scant
consideration” considering “there is . . . no requirement for any sort of ‘Miranda’ type
warning in such informal, non-custodial discussions”).
That is not to say that the right against-self-incrimination is always forfeited in the
school context. Rather, “in the context of questioning by school officials, the right against
self-incrimination is considerably diminished.” Sher v. Upper Moreland Twp. Sch. Dist.,
2011 WL 3652474, at *12 (E.D. Pa. Aug. 19, 2011), vacated on other grounds, 481 F.
App'x 762 (3d Cir. 2012). The Amendment’s rights seem to be only diminished, not
eradicated, where an administrator is acting on behalf of law enforcement officers. But
even then, there needs to be some allegation by the Crawfords suggesting that was the
case. The allegations that Van Dorn was obligated to turn the information over to the
police and she was thus an agent of the State fail as a matter of law. See e.g., S.E. v.
Grant Cnty. Bd. of Educ., 544 F.3d 633, 640 (6th Cir. 2008) (rejecting that school official
“acted in conjunction with or at the behest of police” by “report[ing] the incident to law

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enforcement . . . and [by taking the student’s] statement or confession”). Their § 1983
claim based on the Fifth Amendment is therefore dismissed.
V.

FERPA Claim

The Crawfords’ third § 1983 claim is for rights violated under the Federal
Education Records Privacy Act (FERPA) and the First Amendment. The Crawfords
contend that when the son of Melissa Jordan approached Z.C. at a church youth group
meeting to reveal his awareness that his suspension would not be overturned, this was
somehow a violation of the First Amendment and FERPA. Both claims are quickly
disposed of. First, it is not clear how either Melissa Jordan’s or her son’s statements
infringed on the First Amendment rights of the Crawfords. And as for the FERPA claim,
it too fails. FERPA is merely a federal law that protects the privacy of student education
records. See Gonzaga Univ. v. Doe, 536 U.S. 273, 276, 122 S. Ct. 2268, 2271 (2002)
(explaining that FERPA “prohibit[s] the federal funding of educational institutions that
have a policy or practice of releasing education records to unauthorized persons”). In
other words, FERPA is more concerned with how institutions operate on a broad policy
level rather than with individual requests. Id. (“FERPA's nondisclosure provisions . . .
speak only in terms of institutional policy and practice, not individual instances of
disclosure.”) FERPA does not create a private right of action, with or without § 1983. See
Cudjoe v. Indep. School Dist. No. 12, 297 F.3d 1058, 1062 (acknowledging that the
Supreme Court in Gonzaga “held . . . that FERPA’s nondisclosure provisions ‘create no
right enforceable under § 1983’”). The Crawfords’ final claim is therefore dismissed.
VI.

Injunctive Relief
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Because Plaintiffs have withdrawn their request for injunctive relief, the Court
dismisses that claim as moot.
Conclusion
Plaintiffs’ claims are therefore dismissed for failure to state a claim. Nothing
forming the basis of their due process claim rises to the level of plausibility required.
Similarly, their claims based on the Fifth Amendment and FERPA fail as a matter of law.

IT IS SO ORDERED this 13th day of January 2017.

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