E. S. v. Brookings School District et al
Filing
35
ORDER denying 15 Motion for Summary Judgment; denying 19 Motion for Summary Judgment. Signed by U.S. District Judge Karen E. Schreier on 5/23/2018. (JLS)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
E. S., a minor, by and through D.K, her
mother and next friend, and J.S., her
father and next friend;
4:16-CV-04154-KES
Plaintiff,
ORDER DENYING BOTH MOTIONS
FOR SUMMARY JUDGMENT
vs.
BROOKINGS SCHOOL DISTRICT,
ROGER DEGROOT, former
Superintendent of Schools, in his
Official and Individual Capacities, and
PAUL VON FISCHER, High School
Principal, in his Official and Individual
Capacities;
Defendants.
Plaintiff, E.S., by and through her parents D.K. and J.S. initiated this
action against defendants the Brookings School District (District), Roger
Degroot, and Paul Von Fischer. Docket 1. E.S. alleges that defendants violated
her due process rights under the United States Constitution. Id. Both plaintiffs
and defendants move for summary judgment. Docket 15; Docket 19.
FACTUAL BACKGROUND
The undisputed facts 1 are:
The undisputed facts are derived from the parties’ submitted briefs,
attachments, and the portions of the statements of undisputed material facts
1
During the 2012-2013 academic year, E.S. attended Mickelson Middle
School (MMS) in Brookings, South Dakota as an eighth grader. Docket 17 ¶ 1.
At MMS, E.S. was enrolled in a math class taught by Ms. Renkly. Id. ¶ 2. E.S.
did not like Ms. Renkly, and at one point, E.S. wrote a vulgar message on Ms.
Renkly’s classroom whiteboard. Id. ¶¶ 3, 4. E.S. received a three-day in school
suspension (ISS) as punishment for writing the vulgar message on Ms. Renkly’s
whiteboard. Id. ¶ 5. MMS’s vice principal and principal notified D.K., E.S.’s
mother, about the ISS. Id. ¶ 6.
In January of 2013, E.S. texted a classmate about Ms. Renkly and in one
message stated that she would laugh while Ms. Renkly took her last breath and
she discussed a school shooting. Docket 18-3 at 1. On another occasion, E.S.
placed “dead baby jokes” on Ms. Renkly’s desk. Docket 17 ¶ 7. On February 1,
2013, Ms. Renkly found a piece of paper at MMS where E.S. had printed three
pictures of Ms. Renkly drinking alcohol and stated that Ms. Renkly should
make her Facebook profile private so that pictures of her did not fall into the
wrong hands. Id. ¶¶ 11, 12. As a result of the conduct toward Ms. Renkly,
MMS suspended E.S. for ten days. Id. ¶ 13. Instead of returning to MMS, E.S.
completed the remainder of the 2012-2013 school year in the Sioux Falls
School District. Id. ¶ 17; Docket 29 ¶ 17.
In fall of 2013, E.S. returned to Brookings and enrolled at Brookings
High School (BHS) as a freshman. Docket 17 ¶ 19. After a few days of attending
that are either not disputed or not subject to genuine dispute. Where the facts
are disputed, both parties’ averments are included.
2
high school, BHS’s on-duty police officer, Officer Fishbaugher, 2 told E.S. that
she could not attend class at BHS and sent her home. Id. ¶ 20; Docket 16 at 3.
E.S. was not permitted at school for approximately a week. Docket ¶ 22. There
is little information in the record as to what transpired prior to E.S.’s removal,
and it is unclear what the exact dates are that E.S. was out of school. After
E.S. had been removed from school for a week, J.S., E.S.’s father, and Principal
Von Fischer 3 had a meeting where Von Fischer recommended that E.S. attend
classes at the Alternative Learning Center (ALC) located at BHS. Docket 17 ¶
22; Docket 18-1 at 8; Docket 26-1 at 4. There is no indication in the record as
to whether or not E.S. attended the meeting. J.S. and D.K. did not contest the
decision to place E.S. at ALC with the understanding that, if E.S. performed
well at ALC, she could return to regular classes at BHS. Docket 29 ¶¶ 22, 23.
J.S. and D.K. testified that they did not feel that they had a choice in whether
or not E.S. was placed in the ALC. Docket 29 ¶ 23. On September 3, 2013, E.S.
began attending classes at the Alternative Learning Center (ALC) at BHS.
Docket 17 ¶ 23.
In late October 2013, E.S.’s ALC teacher, Mrs. Bothun, reported to
school officials that E.S. made comments that she interpreted as threatening.
The complaint states that Von Fischer told E.S. she had to leave the school.
Docket 1 ¶ 9.
3 It is unclear from the record exactly who was at this meeting. Both parties
agree that Von Fischer was in attendance. See Docket 17 ¶ 22; Docket 29 ¶ 23.
And according to D.K.’s deposition, J.S. was in attendance at the meeting but
D.K. did not attend. Docket 26-1 at 4. But there is no other evidence in the
record indicating whether or not any other school officials attended the meeting
or whether E.S. attended the meeting.
2
3
Docket 17 ¶ 26; Docket 29 ¶ 26. As a result of Mrs. Bothun’s report, E.S. was
removed from the ALC on October 31, 2013. Docket 17 ¶¶ 26, 28. On or about
November 1, 2013, various school officials 4 and J.S. met and discussed E.S.’s
removal from the ALC. See Docket 27-1 at 10-11. The parties agreed that Dr.
John Sivesind would conduct a psychological evaluation of E.S. before she was
permitted to return to school. Id. ¶ 30; Docket 29 ¶ 30. There is no indication
in the record as to whether E.S. was present at this meeting, whether E.S. or
her parents were informed of what the charges against her were, or whether
E.S. was permitted to tell her side of the story. 5 Dr. Sivesind concluded that
E.S. suffered from “some well-defined and undiagnosed pathology,” and
recommended that E.S. return to school. Docket 17 ¶ 31. On December 4,
2013, BHS school officials, D.K., and J.S. had another meeting and the school
officials requested another evaluation. Id. ¶ 34; Docket 29 ¶ 34.
From October 31, 2013, until December 4, 2013, E.S. was enrolled in
one 6 online course. Docket 17 ¶ 36; Docket 29 ¶ 39. At the December 4, 2013
Again, it is not clear who attended this meeting. Both parties agree that E.S.’s
father, J.S., was at the meeting. Docket 17 ¶ 29; Docket 26-1 at 6. D.K.
testified at her deposition that she was not at the meeting. Docket 26-1 at 6.
But an email sent from D.K. to Von Fischer on November 1, 2013, indicates
that D.K. attended the meeting. See Docket 27-1 at 10. Neither party identifies
which schools officials were at the meeting and neither party addresses
whether or not E.S. was at the meeting.
5 E.S. and her parents maintain that E.S.’s comment to Mrs. Bothun was not
intended to be threatening and instead there was just a misunderstanding
between E.S. and Mrs. Bothun. Docket 29 ¶ 26.
6 Based on emails exchanged between D.K. and Von Fischer, it appears that
the one class E.S. took during this time was Geography. See Docket 27-1 at 911.
4
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meeting, D.K. requested that E.S. be enrolled in more online courses. Docket
27-2 at 7. On December 9, 2013, D.K. emailed Von Fischer stating that BHS
enrolled E.S. in an online English class shortly after the December 4 meeting,
but that she still had not been enrolled in an online Algebra or Science class.
Docket 27-1 at 9. On December 10, 2013, D.K. sent another email to Von
Fischer stating that E.S. had started a Science class but was still unable to
begin Algebra. Id. at 8. In and around December 13, 2013, E.S. was enrolled in
an online Algebra class. Id. at 7.
As a result of the December 4, 2013 meeting, Dr. Scott Pribyl reviewed
Dr. Sivesind’s report and recommended that E.S. “participate in a more indepth psychological evaluation and risk-assessment.” Docket 17 ¶ 33. On
January 14, 2014, school officials, including Roger Degroot, the
Superintendent of the Brookings School District, met with J.S. and D.K. Id. ¶
34. At the January meeting, the school officials indicated that they wanted E.S.
to be evaluated again. Id. ¶ 35. E.S. was then evaluated by Dr. Jennifer
Helkenn at Sioux Falls Psychological Services. Docket 29 ¶ 35. Also in January
2014, the District provided E.S. with a tutor. Id. From January 2014 until the
end of the 2014 school year, E.S. received online and tutor-aided instruction.
Docket 17 ¶ 38. On May 16, 2014, E.S. was found to be eligible for special
education services. Id. ¶ 40.
On June 14, 2014, J.S., D.K., Von Fischer, Michelle Powers (Director of
Special Education), and DeGroot met to discuss E.S.’s education. Id. ¶ 41. At
the meeting, DeGroot stated that E.S. would not be allowed on school property
5
until she was evaluated by Dr. Kauffman. Id. ¶ 42. On August 22, 2014, Von
Fischer sent a letter to D.K. and J.S. stating that “[E.S.] will remain an enrolled
student receiving online courses and support from a tutor indefinitely. This
decision is based on initial information received from Dr. Kauffman . . . .”
Docket 27-7. Dr. Kauffman’s final report was completed sometime in midOctober 2014. Docket 27-13. On August 24, 2014, E.S. filed a student
grievance form requesting a hearing in front of the School Board or an
impartial hearing officer. Docket 27-6. E.S. was later informed that her
grievance would have to be presented first to Von Fischer. Docket 17 ¶ 44. E.S.
and her parents felt that they had already met with Von Fischer on multiple
occasions and declined to meet with him again. Id. ¶ 45; Docket 29 ¶ 45. From
August 2014 until January of 2015, E.S. was enrolled in online classes and
received tutoring. Docket 17 ¶ 38.
In January of 2015, based on a finding of the District, E.S. became
eligible for and began receiving special education services at Volunteers of
America in Sioux Falls, South Dakota. Id. ¶ 47. E.S. completed the program
with Volunteers of America on April 15, 2015. Id. ¶ 49. For the remainder of
the school year, E.S. attended BHS for half-days and then had online classes
for the remaining half of the day. Id. ¶¶ 50-51. E.S. completed her Junior and
Senior years at Lincoln High School in Sioux Falls, South Dakota. Id. ¶ 52. E.S.
graduated from Lincoln High School in 2017. Id. ¶ 53.
6
STANDARD OF REVIEW
Summary judgment is proper “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “[A] party seeking summary judgment
always bears the initial responsibility of . . . demonstrat[ing] the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The moving party must inform the court of the basis for its motion and
also identify the portion of the record that shows there is no genuine issue in
dispute. Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citation
omitted).
To avoid summary judgment, “[t]he nonmoving party may not ‘rest on
mere allegations or denials, but must demonstrate on the record the existence
of specific facts which create a genuine issue for trial.’ ” Mosley v. City of
Northwoods, 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. County of Le
Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). “[T]he mere existence of some alleged
factual dispute between the parties is not sufficient by itself to deny summary
judgment . . . . Instead, ‘the dispute must be outcome determinative under
prevailing law.’ ” Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.
1992) (quoting Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989)). On a
motion for summary judgment, the facts and inferences drawn from those facts
are “viewed in the light most favorable to the party opposing the motion.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
7
DISCUSSION
Under the Fourteenth Amendment, a state may not “deprive any person
of life, liberty, or property, without due process of law.” U.S. Const. amend.
XIV. “Once it is determined that due process applies, the question remains
what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). In Goss v.
Lopez, 419 U.S. 565 (1975), the United States Supreme Court recognized that
“a student’s legitimate entitlement to a public education [is] a property interest
. . . protected by the Due Process Clause . . . .” Id. at 574. Thus, “[a]t the very
minimum . . . students facing suspension and the consequent interference with
a protected property interest must be given some kind of notice and afforded
some kind of hearing.” Id. at 579. In the case of a short suspension, not
exceeding 10 days, the Supreme Court has held that a student must be
informed of the alleged misconduct and given the opportunity to respond to the
allegation. Id. at 582. But “[l]onger suspensions or expulsions for the remainder
of the school term, or permanently, may require more formal procedures.” Id. at
584.
I.
E.S. was subjected to a deprivation of education similar to that of a
suspension.
There are two separate time frames when defendants prohibited E.S.
from attending school on BHS’s school grounds—for a week at the beginning of
the 2013 school year and for 15 months starting on October 31, 2013.
Defendants argue that E.S. was not entitled to procedural due process because
she was not suspended or expelled from school in August 2013 or in October
8
2013, but she was instead put in an alternative learning environment where
she received instruction online and with a tutor. Docket 16 at 9. The Eighth
Circuit Court of Appeals has not addressed whether a student’s placement in
an alternative school for disciplinary reasons implicates a constitutional
violation. Chyma v. Tama Cty. Sch. Bd., 2008 WL 4552942 at *3 (N.D. Iowa Oct.
8, 2008). But several other circuits have found that a student may not have
procedural due process rights where “the sanction imposed is attendance at an
alternative school absent some showing that the education received at the
alternative school is significantly different from or inferior to that received at
[her] regular public school.” Buchanan v. City of Bolivar, 99 F.3d 1352, 1359
(6th Cir. 1996); see also Langley v. Monroe Cty. Sch. Dist., 264 F. App’x. 366,
368 (5th Cir. 2008); C.B. v. Driscoll, 82 F.3d 383, 389 (11th Cir. 1996); Zamora
v. Pomeroy, 639 F.2d 662, 670 (10th Cir. 1981).
A. E.S. was suspended from BHS for a week at the beginning of the
2013 school year.
Neither party disputes that E.S. was prohibited from attending school for
a week at the beginning of the 2013 school year. Both the plaintiffs and the
defendants acknowledge that E.S. attended school for a few days before she
was spotted by Officer Fishbaugher and told that she could not attend classes
at BHS. See Docket 17 ¶ 20; Docket 29 ¶ 20. E.S. was then prohibited from
attending school for a week. See Docket 17 ¶ 22. Defendants do not offer any
explanation as to E.S.’s removal at that time. To the extent that defendants try
to argue that she was not suspended and only placed in an alternative school,
9
that argument fails. E.S. was prohibited from attending regular classes at BHS
and was not provided a tutor or other instruction during that time. Her
schooling during that week was “significantly different” from what she would
have received attending BHS. Thus, she was effectively suspended and entitled
to the due process procedures described in Goss for a short-term suspension.
B. E.S. was suspended from October 31, 2013, until December 13,
2013.
Defendants argue that “[i]t is undisputed that, beginning in November
2013, E.S. was enrolled in at least one online course and she eventually
received aid from a school-appointed tutor” so her alternative form of education
was not inferior to a regular public school. Docket 16 at 9-10. E.S. did
eventually receive instruction in her regular classes and instruction from a
tutor, but there was a six-week period of time where E.S. was only enrolled in
one online course. In Marner ex rel. Marner v. Eufaula City School Board, 204 F.
Supp. 2d 1318 (M.D. Ala. 2002), a student was suspended for three days and
placed in an alternative school for forty-five days after a pocket knife and
exacto blade were found in his car. Id. at 1321. Prior to the suspension, the
student received oral notice of the charges against him and the student agreed
that oral or written notice was all that was due prior to a suspension of fewer
than ten days. Id. at 1323. But the student argued that his placement in an
alternative school setting was equivalent to a suspension, and thus, he was
suspended for forty-eight days and was entitled to a full hearing before the
school board. Id. The district court reasoned that the alternative school was not
10
inferior to regular classroom instruction because the student was permitted to
work on his regular school work, was graded as if he were in the regular
classroom, received one-on-one contact from certified teachers, and could
receive assistance from the regular classroom teachers. Id. at 1324. Thus, the
court found that reassignment to the alternative school “would not have
resulted in a sufficient educational deprivation to warrant treating the
reassignment to the alternative school as the equivalent of a suspension” so the
student was not entitled to due process. Id.
In Nevares v. San Marcos Consolidated Independent School District, 111
F.3d 25, 26 (5th Cir. 1997), a student was transferred to an alternative
education program as a form of discipline and to maintain safety after the
student committed an aggravated assault. The Fifth Circuit Court of Appeals
reasoned that the student was not denied access to public education because
“[h]e was only to be transferred from one school program to another program
with stricter discipline.” Id. The alternative program was maintained by Texas
schools and required to comply with a set of statutory regulations. Id. (citing
Tex. Educ. Code §§ 37.001—37.011 (stating the rules and regulations for
“Alternative Settings for Behavior Management”)). Thus, the Fifth Circuit found
that the transfer to the alternative education program was not equivalent to a
suspension or expulsion and did not trigger due process rights. Id.
In Swindle v. Livingston Parish School Board, 655 F.3d 386 (5th Cir.
2011), a school expelled a student for a year (eighth grade) after the student
was discovered to have attended a school dance under the influence of
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marijuana. Id. at 389. The student’s parents requested that the school provide
some form of alternative education during that year, but the school refused the
request without due process. Id. at 390. Instead the student’s parents
attempted to home school her during eighth grade and when the student came
back to school she was required to repeat the eighth grade. Id. at 390-91. The
Fifth Circuit Court of Appeals found that the student “was entitled to predeprivation notice and some kind of hearing” prior to the termination of her
right to alternative education that caused her to lose her right to education for
an entire school year. Id. at 393.
Here, from October 31, 2013, until December 4, 2013, E.S. received an
alternative form of education that included one online Geography class. She
was not enrolled in Science, Algebra, or English until December 13, 2013, and
she did not receive any tutoring until mid-January of 2014. In contrast to the
students in Marner and Nevares where the students continued completing
work in their regular classes and received instruction from certified teachers,
beginning on October 31, 2013, until December 4, 2013, E.S. was only enrolled
in one class. E.S. was not enrolled in all of her regular classes until December
13, 2013, so E.S. went approximately six weeks without the ability to continue
completing work in her regular classes. Thus, E.S.’s alternative education
during that timeframe was equivalent to a suspension and triggered a right to
procedural due process.
Defendants argue that plaintiffs were required to obtain data or expert
testimony to demonstrate that E.S.’s instruction was inferior to that of a
12
regular public school and cites to the Sixth Circuit Court of Appeals opinion in
Kenton County School District v. Hunt, 384 F.3d 269 (6th Cir. 2004). But the
opinion in Hunt is distinguishable from this situation because Hunt dealt with
violations of the Individuals with Disabilities Education Act (IDEA) and not with
violations of the Due Process Clause. Id. at 271. The Sixth Circuit interpreted
provisions of the IDEA as requiring expert testimony and data to determine
whether a school district has complied with the act, but that requirement was
limited to compliance with the IDEA.7 Thus, plaintiffs are not required to
provide expert testimony as to the inadequacy of E.S.’s education, and this
court finds that E.S. has presented sufficient evidence to determine that one
online class for a six-week period “is significantly different from or inferior to
that received at [E.S.’s] regular public school” because she was not assigned
work in her regular classes and did not receive any instruction from a certified
teacher. Buchanan, 99 F.3d at 1359. Her deprivation of an education was
significant enough to be treated as a suspension and warrants procedural due
process.
C. There is a question of fact as to whether E.S. was suspended from
December 13, 2013 through January of 2015.
Plaintiffs also argue that E.S. was constructively suspended and deprived
of an education when she participated in only online classes and tutoring at
The Sixth Circuit in Cordrey v. Euckert, 917 F.2d 1460, 1470 (6th Cir. 1990),
found that the IDEA required that the student has the burden to show that he
needs extended school year (ESY) education and that expert testimony and/or
empirical data is required to show such a need.
7
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home. When a student is placed in an alternative learning program for
disciplinary reasons, there must be a showing that the alternative school is
“significantly different from or inferior to that received at [her] regular public
school” for the student to claim that she is entitled to due process. Buchanan,
99 F.3d at 1359. In Marner and Nevares, the courts found that the alternative
learning programs were not inferior to a regular classroom setting because the
students received instruction from certified teachers, had one-on-one contact
with teachers, and were able to work on their regular schoolwork. See Marner,
204 F. Supp. 2d at 1324; Nevares, 111 F.3d at 26.
Neither the defendants nor the plaintiffs provide significant evidence as
to the quality of E.S.’s online instruction and tutor. D.K. testified that E.S. fell
“well behind her other peers,” that she did not receive “a full education from
the Brookings School District,” and “had to take classes into the summer in
order to just complete her freshman year on time.” Docket 27-2 at 7.
Defendants do not identify whether E.S.’s tutor was a certified teacher, whether
E.S. had sufficient access to the tutor to ask questions and receive adequate
instruction, and whether E.S. was able to work on her regular schoolwork.
Defendants also do not provide any information as to whether E.S. was able to
maintain a similar pace of learning as her peers. Thus, this court finds that
there is a question of material fact as to whether E.S.’s online instruction and
tutor were inferior to a regular classroom setting such that would require due
process.
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II.
Process due to E.S. prior to her placement in an alternative
education program.
“Once it is determined that due process applies, the question remains
what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). “[D]ue
process is flexible and calls for such procedural protections as the particular
situation demands.” Id. The Supreme Court’s opinion in Goss only dealt with
the required procedural safeguards for short-term suspensions—ten days or
less, and the Eighth Circuit recognized that the holding in Goss is limited to
shorter suspensions. Doe ex rel. Doe v. Todd Cty. Sch. Dist., 625 F.3d 459, 46263 (8th Cir. 2010). The United States Supreme Court has not addressed what
procedural safeguards apply to students subjected to long-term suspensions,
but the Eighth Circuit, as well as several other appellate courts, have applied
the balancing test set out in Mathews v. Eldridge, 424 U.S. 319 (1976). Keefe v.
Adams, 840 F.3d 523, 535 (8th Cir. 2016); Watson ex rel. Watson v. Beckel,
242 F.3d 1237, 1240 (10th Cir. 2001); Palmer v. Merluzzi, 868 F.2d 90, 95 (3d
Cir. 1989); Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 923-24 (6th Cir.
1988); Gorman v. Univ. of Rhode Island, 837 F.2d 7, 14 (1st Cir. 1988); Nash v.
Auburn Univ., 812 F.2d 655, 660 (11th Cir. 1987).
Under the balancing test in Mathews, the court must balance three
factors:
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s
15
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.
Mathews, 424 U.S. at 335. E.S. alleges that she was not provided proper notice
or an opportunity to defend against the charges levied against her prior to
being constructively suspended from school first for one week in August 2013
and then again beginning in October 2013 and continuing until January of
2015.
A. There are material disputes of fact as to whether E.S. was
provided with notice and an opportunity to respond when she
was suspended from school for one week.
E.S.’s suspension at the beginning of the 2013-2014 school year falls
under the procedural requirements set out in Goss because it was a short-term
suspension. The Supreme Court in Goss held that in the case of a short
suspension a student must be informed of the alleged misconduct and given
the opportunity to respond to the allegation. Goss, 419 U.S. at 582. Here,
defendants do not identify anywhere in the record what E.S.’s alleged
misconduct was or whether Officer Fishbaugher informed E.S. of her alleged
misconduct and gave her an opportunity to respond. Defendants simply state
that Officer Fishbaugher told E.S. “she could not attend regular class at BHS.”
Docket 17 ¶ 20. Plaintiffs allege that E.S. did not engage in any misconduct to
warrant the suspension. Docket 29 ¶ 20. Thus, there are disputes of material
fact as to whether E.S. was provided notice and an opportunity to be heard or
whether she was simply suspended from school without any due process until
BHS officials could decide how to handle her enrollment.
16
B. There are material disputes of fact as to whether E.S. received
due process prior to her six-week suspension and her enrollment
into online courses and tutoring.
Defendants argue that they provided E.S. with notice and an opportunity
to be heard when they met with E.S.’s parents. Docket 16 at 18. E.S.’s six-week
suspension is a long term suspension entitled to due process as set out in
Mathews. Goss, 419 U.S. at 584; Keefe, 840 F.3d at 535. In Keefe, a student
was removed from the nursing program at Central Lakes College (CLC) for
making unprofessional Facebook comments. Keefe, 840 F.3d at 526-27. Prior
to being removed from the program, the Director of Nursing at CLC and the
CLC’s Dean of Students met with the student to discuss his unprofessional
posts. Id. at 526. At the meeting, the Director reviewed the steps of the due
process policy in the student handbook, informed the student that “his
Facebook posts raised concerns about his professionalism and boundary
issues[,]” and “she read aloud portions of the posts that she considered most
significant.” Id. The director then gave the student an opportunity to respond,
informed the student that he was removed from the nursing program, and
informed him that he could appeal the decision. Id. at 527. The Eighth Circuit
found that the student was awarded sufficient procedural due process under
Mathews because the director “met with [the student], informed him that there
were concerns regarding his Facebook, read from the posts of greatest concern,
explained that his posts implicated the professionalism and professional
boundary requirements of the Nursing Program, and gave him an opportunity
17
to respond.” Id. at 535. The Eighth Circuit also noted that the student admitted
to authoring the posts. Id.
In Waln ex rel. Waln v. Todd County School District, a student was given a
short-term suspension after getting into a physical fight with another student
and was suspended on the same day by the school’s principal. Waln, 388 F.
Supp. 2d 994, 996-97 (D.S.D. 2005). The day after the suspension and fight,
the school’s principal was able to reach the student’s mother on the phone and
informed her that her son had been in a fight and was suspended. Id. at 997.
The principal also told the student’s mother that her son may receive a longterm suspension or expulsion from school. Id. Two days after the physical
altercation, the school principal sent a letter to the student’s mother stating
that he was suspending the student for the remainder 8 of the school year and
“[the] letter made no mention of a hearing or other procedures that could be
employed to challenge the suspension.” Id. at 998. A few days later, the
student’s stepfather informed the school that they objected to the suspension
and requested a hearing with the School Board. Id. At the hearing, the school’s
superintendent detailed the allegations against the student including accounts
of the fight. Id. at 999. The student and his parents were permitted to respond.
Id. The school board referred the decision of whether to overturn the
The letter was authored on January 15, 2004. Waln, 388 F. Supp. 2d at 997.
Thus, the suspension was several months long and considered a long-term
suspension.
8
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suspension to the superintendent who eventually overturned the decision after
the student was suspended for a total of 31 school days. Id. at 1000.
The district court found that the student in Waln was not afforded
procedural due process. Id. at 1007. The court reasoned that “[a]t a very
minimum, it was incumbent on the defendants to inform [the student] that he
had the right to challenge the suspension in some sort of an adjudicatory
hearing.” Id. at 1003. And the superintendent imposed a long-term suspension
two days after the fight without any sort of “meaningful opportunity to deny the
aggravated assault charge or present his side of the story.” Id. at 1004. The
court also noted that the school failed to comply with the procedures set out in
South Dakota law but acknowledged that violations of state law, without more,
do not arise to a violation of due process. Id. at 1007.
Here, there is little evidence in the record to determine whether or not
E.S. was afforded sufficient due process. As to the November 1, 2013 meeting,
the parties are only able to identify that J.S. was in attendance, and based on
emails exchanged between Von Fischer and D.K., it appears that Von Fischer
and D.K. also attended. Docket 27-1 at 10. But the record does not indicate
whether E.S. was at the meeting, whether E.S. or her parents were informed of
her wrongful actions, or whether E.S. had an opportunity to present her side of
the story. Thus, there are disputes of material fact as to whether E.S. was
afforded due process when she was constructively suspended from BHS for six
weeks.
19
Beginning on December 13, 2013, the District enrolled E.S. in online
courses and then provided a tutor starting in January of 2014. E.S. received
online instruction and tutoring until January 15, 2015. As discussed above,
there is a question of fact as to whether the online courses and tutor were
inferior to a regular classroom setting. See supra Section I.C. If the online
instruction and tutoring were inferior, then E.S. would have been entitled to
due process as set out in Mathews. Goss, 419 U.S. at 584; Keefe, 840 F.3d at
535.
Defendants argue that they provided E.S. with notice and an opportunity
to be heard when they met with E.S.’s parents. On December 4, 2013, BHS
school officials, D.K., and J.S. had another meeting where the school officials
requested that E.S. be evaluated by another doctor and indicated that E.S.
would not be permitted to return to school. Docket 17 ¶ 34; Docket 29 ¶ 34. At
the December 4, 2013 meeting D.K requested that, if E.S. were to remain
taking online classes, she be enrolled in more than one class. Docket 27-2 at 7.
D.K. testified that she did not feel she had a choice as to whether E.S. would
receive online courses or regular classroom instruction. Docket 18-1 at 11.
There is no indication in the record whether E.S. or her parents were informed
of her wrongful actions or whether E.S. had an opportunity to present her side
of the story. Docket 17 ¶¶ 32-33. School officials had another meeting in
January of 2014 where they asked for another evaluation, but again there is
not enough information in the record to determine whether E.S. received due
process as required in Mathews. Thus, there is a material dispute of fact as to
20
whether E.S. received due process prior to her placement in online courses and
tutoring.
1. There was not a process made available to E.S.
Defendants also argue that E.S. cannot establish a claim for violation of
due process because she did not utilize the processes available to her. Docket
16 at 18. On August 24, 2014, E.S. filed a student grievance form requesting a
hearing in front of the School Board or an impartial hearing officer, but upon
learning that the first step would be to meet with Von Fischer, E.S. and her
parents declined to meet with Von Fischer again. Docket 17 ¶ 44; Docket 27-6.
Defendants rely on Alvin v. Suzuki, 227 F.3d 107 (3d Cir. 2000), to
support their argument. In Alvin, a professor at the University of Pittsburgh
filed a § 1983 action alleging he was deprived of his ability to conduct research
projects without receiving due process. Id. at 112. The University had a faculty
grievance process, but the professor claimed he was denied access to it. Id. at
112-13. The Third Circuit found that the professor had not followed the
procedures laid out in the faculty grievance process and that “[i]f there is a
process on the books that appears to provide due process, the plaintiff cannot
skip that process and use the federal courts as a means to get back what he
wants.” Id. at 116.
The Brookings School District has policies in place to govern the
suspension of students. As to short-term suspensions, “the Principal or
Superintendent shall give oral or written notice to the student as soon as
possible . . . stating the facts that form the basis for the suspension.” Docket
21
27-3 at 5. “The student must be given the opportunity to answer for the
charges.” Id. “If the student is suspended, The Principal or Superintendent
shall give the parent/guardian oral notice . . . or shall send the
parent/guardian . . . a written notice[.]” Id. at 5-6. “There are no further
hearing rights when a short-term suspension is utilized.” Id. at 6.
As to long-term suspension, the Superintendent must file a written
report with the school board that includes the relevant facts and the
Superintendent’s decision or recommendation. Id. The Superintendent must
also send a copy of the report to the student’s parent or guardian, and the
report must explain that the parents have the right to request a hearing. Id. at
7. The waiver must be in writing to the Superintendent. Id. The school board
must approve the Superintendent’s recommendation before it is implemented.
Id.
There is no evidence in the record that defendants mailed a written
report to E.S.’s parents or filed one with the school board prior to removing her
from school. To succeed on a claim for violation of due process, the plaintiff
must first take advantage of the processes available. But unlike in Alvin, the
defendants never made its process available to E.S. because they never
“officially” suspended her. Defendants argue that E.S.’s failure to meet with
Von Fischer about her student grievance constitutes a failure to avail herself of
the processes provided. But a student grievance is not part of the procedure set
out in the District’s own policy for suspensions. Thus, E.S. did not fail to follow
22
procedures available to her for suspensions because they were not ever made
available to her.
2. IDEA
Defendants argue that this claim is not properly brought under § 1983,
and instead, it should have been brought under IDEA because E.S. was
determined to be a student with special needs and was placed in alternative
learning settings. Docket 16 at 20. IDEA seeks “to ensure that all children with
disabilities have available to them a free appropriate public education . . . .” 20
U.S.C. § 1400(d)(1)(A). E.S., however, was not found eligible for special
education services until May 16, 2014. Docket 17 ¶ 40. Thus, the issues
regarding her quality of education in September 2013 and from October 31,
2013 until May 16, 2014, would not be governed by IDEA.
As to plaintiffs’ claims from May 16, 2014 until January of 2015,
plaintiffs have not alleged that E.S. was not afforded a free appropriate public
education (FAPE) under IDEA. E.S. was enrolled in special education services
at Volunteers of America in Sioux Falls, South Dakota in January of 2015.
Docket 17 ¶ 47. Plaintiffs have specifically stated that they are not contesting
the quality of education provided at Volunteers of America and did not bring a
claim for violation of IDEA. Docket 28 at 14-15. E.S. was originally placed in
online courses as a disciplinary measure and not as a response to her eligibility
for special education. Plaintiffs’ allegations are that E.S. was effectively
suspended from school without proper due process. Thus, any exhaustion
23
requirements under IDEA are inapplicable because plaintiff is not alleging
violations of IDEA.
CONCLUSION
In conclusion, the alternative education that E.S. received for
approximately a week in September 2013 and from October 31, 2013 through
December 13, 2013, was inferior to what she would have received attending
regular classes, so each time period was equivalent to a suspension and
required due process. There is a material dispute of fact as to whether E.S.’s
education from December 13, 2013 until January of 2015 was inferior to what
she would have received attending regular classes and thus whether she was
entitled to due process. There are also material disputes of fact as to what
process E.S. was afforded prior to her suspensions and her placement in online
courses and tutoring. Thus, it is
ORDERED that defendants’ motion for summary judgment (Docket 15) is
DENIED.
It is FURTHER ORDERED that plaintiffs’ motion for summary judgment
(Docket 19) is DENIED.
DATED May 23, 2018.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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