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E. S. v. Brookings School District

United States District Court, D. South Dakota, Southern Division

May 23, 2018

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.



         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.


         The undisputed facts[1] 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.

         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 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. 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 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 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.

         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 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.

         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.


         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)).


         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 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 ...

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