United States District Court, D. 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; Plaintiff,
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.
ORDER DENYING BOTH MOTIONS FOR SUMMARY
E. SCHREIER UNITED STATES DISTRICT JUDGE.
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.
undisputed facts are:
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.
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.
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 high school, BHS's on-duty police
officer, Officer Fishbaugher,  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 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.
October 2013, E.S.'s ALC teacher, Mrs. Bothun, reported
to school officials that E.S. made comments that she
interpreted as threatening. 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 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. 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.
October 31, 2013, until December 4, 2013, E.S. was enrolled
in one online course. Docket 17 ¶ 36; Docket
29 ¶ 39. At the December 4, 2013 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.
result of the December 4, 2013 meeting, Dr. Scott Pribyl
reviewed Dr. Sivesind's report and recommended that E.S.
“participate in a more in-depth 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.
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
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
mid-October 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.
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.
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
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)).
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.
E.S. was subjected to a deprivation of education similar to
that of a suspension.
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 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
E.S. was suspended from BHS for a week at the beginning ...