Jones, Priscilla et al v. Sun Prairie Area School District

Filing 19

ORDER denying 9 Motion to Sever. Signed by District Judge James D. Peterson on 11/17/2021. (rks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

PRISCILLA JONES, individually and on behalf of her
minor child, George Brockman,
DAZARREA ERVINS individually and on behalf of her
minor child, Zayvion Ervins, and
DAVID ERVINS, individually and on behalf of his
minor child, Zayvion Ervins.
Plaintiffs,

OPINION and ORDER
21-cv-366-jdp

v.
SUN PRAIRIE AREA SCHOOL DISTRICT,
Defendant.
Plaintiffs, the parents of African American middle school students George Brockman
and Zayvion Ervins, contend that defendant Sun Prairie Area School District violated federal
and state law when teachers gave out a racially offensive assignment that asked students how
they would punish a slave. Plaintiffs also allege that Brockman was subjected to racial
harassment at district elementary schools.
The district moves under Federal Rule of Civil Procedure 21 to sever Brockman’s claims.
Dkt. 9. The district presents undisputed evidence that Brockman did not receive the
assignment. The district contends that this new evidence leaves Brockman with only his racial
harassment claims, which are unrelated to the assignment and belong in a separate lawsuit. But
Brockman has not abandoned his claims arising from the assignment and it doesn’t make sense
to try his second set of claims in a separate case. For the reasons explained below, the court
will deny the motion.

BACKGROUND
The court draws the following facts from plaintiffs’ complaint unless otherwise noted.
Dkt. 1. Plaintiffs bring two sets of claims against the district. The first set of claims is on behalf
of Brockman and Ervins; it is based on the assignment given at Patrick Marsh Middle School
within the district. On February 1, 2020, the first day of Black History Month, sixth graders
were studying Ancient Mesopotamia in their social studies classes. Teachers in three classes
gave students an assignment about Hammurabi, a Babylonian king who created an early set of
laws called Hammurabi’s code. The assignment asked students to apply the code to a variety
of scenarios. One of the questions asked:
A slave stands before you. This slave has disrespected his master
by telling him “you are not my master!” How will you punish this
slave?
The assignment upset students and parents. Later that day, the Patrick Marsh principal
had the assignment removed, and he and the district superintendent issued apologies. The
teachers who gave the assignment were placed on leave. They ultimately resigned from their
jobs. Plaintiffs' complaint states that Ervins and Brockman both received the assignment. But
the district adduced a declaration from the superintendent stating that only Ervins was in a
class that got the assignment. Dkt. 11. The parties now agree that Brockman didn’t receive the
assignment. Dkt. 10 and Dkt. 13.
Plaintiffs’ second set of claims is on behalf of Brockman alone. Brockman began
kindergarten at an elementary school within the district in 2014. From kindergarten until
second grade, other students bullied Brockman based on his race and called him racial epithets.
Rather than protect him, staff blamed Brockman and defended his bullies. Teachers subjected

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Brockman to unfair punishments, including locking him in a classroom alone, grouping him
with a student who called him racial epithets, and making him lie face down on the ground.

ANALYSIS
The question before the court is whether both sets of plaintiffs’ claims—those based on
the assignment and those based on Brockman’s racial harassment in elementary school—belong
in the same lawsuit. Federal Rule of Civil Procedure 20(a)(1) allows multiple people to join
one action as plaintiffs if: (1) they assert any right to relief that arises from the same transaction
or occurrence; and (2) the action involves any question of law or fact common to all plaintiffs.
Fed. R. Civ. P. 20(a)(1). Rule 21 provides a remedy for when plaintiffs’ claims are improperly
joined. Under Rule 21, so long as a claim is “discrete and separate,” a district court may exercise
its discretion and sever it. Gaffney v. Riverboat Servs. of Ind., Inc., 451 F.3d 424, 442 (7th Cir.
2006) (quoting Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1016 (7th Cir. 2000)). A claim is
separate and discreet if it can be resolved despite the outcome of the other claim. Id.
The district moves to sever under Rule 21 and makes what I understand to be a twofold argument. First, because Brockman did not receive the assignment, his claims are limited
his racial harassment claims. Second, because Brockman now brings only racial harassment
claims, Brockman’s and Ervins’s claims arise from unrelated events and do not meet the Rule
20 requirements for joinder.
The court is not persuaded that severance is appropriate. The district’s first argument
is premised on an assumption that plaintiffs are withdrawing Brockman from the assignmentbased claims in light of the district’s new evidence that Brockman didn’t receive the assignment.
But plaintiffs have not withdrawn Brockman from the claims based on the assignment, and the

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district doesn’t move to dismiss him as a plaintiff. To the contrary, plaintiffs say that they still
intend to bring assignment-based claims on behalf of Brockman. See Dkt. 13, at 2. They say
that the assignment negatively affected Brockman even though he didn’t directly receive it. It
makes sense to keep these claims in the same lawsuit because they arise from the same factual
events and will involve the same legal standards. There will be factual variations in how
Brockman and Ervins learned about the assignment and felt about it, but those differences are
not significant enough to try the claims in separate cases.
The district makes a fair point in its second argument: Brockman’s racial harassment
claims are unrelated to the assignment. Patrick Marsh teachers gave the assignment in 2020
when Brockman and Ervins were in the sixth grade. Brockman alleges that he was harassed
beginning 2014 in kindergarten, at different schools and by different teachers. So the two sets
of claim involve different facts and legal standards. But Brockman’s claims comply with Federal
Rule of Civil Procedure 18, which allows a party to join as many claims as it has against an
opposing party, even if those claims are unrelated. It would be more efficient to have Brockman
proceed with all of his claims against the district in one case. The motion to sever will be denied.
One additional note: in its reply brief, the district alludes to “significant standing issues”
with Brockman’s claims arising from the assignment. Dkt. 14, at 4. The district says that if
Brockman has standing on these claims, so might hundreds of other students. If the district
believes that Brockman lacks standing, it should move to dismiss on those grounds or raise
those issues at summary judgment. But those potential standing issues provide no basis to sever
Brockman’s claims.

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ORDER
IT IS ORDERED that defendant’s motion to sever, Dkt. 9, is DENIED.
Entered November 17, 2021.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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