The opinion of the court was delivered by: Hon. Victoria A. Roberts
This matter is before the Court on Defendants' Motion for Summary Judgment [Dkt. #39]. Plaintiffs filed a Response [Dkt. #49]. For the reasons stated, the Motion is GRANTED IN PART and DENIED IN PART.
This civil rights action was filed on behalf of 12 students of Port Huron Northern High School against Defendants Michael Jones ("Jones"), former Superintendent of the Port Huron School District; Craig Dahlke ("Dahlke"), Port Huron Northern principal; the Port Huron Area School District Board of Education ("Board" or "District"); and six board members, Jeffrey Stout ("Stout"), Thomas Crosby ("Crosby"), Rasha Demashkieh ("Demashkieh"), Geoffrey Hering ("Hering"), Charles Meeker ("Meeker"), and Anna Kovar ("Kovar").
The lawsuit alleges the students were deprived of an equal educational opportunity as the result of "student on student" racial harassment, in violation of 42 U.S.C. § 1983; Title VI of the Civil Rights Act of 1964 ("Title VI"); the Michigan Elliott Larsen Civil Rights Act ("ELCRA"), MCL 37.2102(a) et seq.; the Michigan Equal Accommodation Act ("MEAA"), MCL 750.146 et seq.; and were subjected to intentional infliction of emotional distress.
Four student Plaintiffs have been dismissed from the action for failing to appear for scheduled depositions. Eight student Plaintiffs remain -- Phillip Jones ("Phillip"), Jansyn Southgate Smith ("Jansyn"), Natasha Thames ("Natasha"), Joshua Portis ("Joshua"), Gregory Harrison ("Gregory"), Zenia Hayes ("Zenia"), Kevina Jackson ("Kevina"), and Darcy Hayes ("Darcy").
Plaintiffs' claims center around events which occurred at Port Huron Northern from 2003 through 2006, but they say the history of racial harassment dates back to the 1990's. Plaintiffs allege the persistent racial harassment included graffiti, racial slurs and threats of physical harm. Pursuant to Fed. R. Civ. P. 56, the Court construes the facts in the light most favorable to Plaintiffs.
Port Huron Northern is one of two regular high schools in the Port Huron School District. Port Huron Northern has approximately 1,600 students; only 3% are black. See Pl. Brief, p. 1. For the 2003 - 2004 school year, Port Huron Northern received a new black assistant principal ("AP"), Marla Philpot ("Philpot"); she was the only black professional employee at the school. Id. Port Huron Northern has three APs with authority to suspend and recommend expulsion for racial harassment. See Pl. Brief, p. 2.
One week after Philpot arrived, she found Ku Klux Klan paraphernalia and white supremacist literature on or under her desk. See Philpot Dep., p. 28-29. That school year, both students and parents called Philpot the "n" word, including one parent who came to the school using racial slurs and looking to beat up Philpot after Philpot disciplined her son. See Philpot Dep., p. 31-32. All of these incidents were reported to then-principal, Cheryl Wojtas ("Wojtas").
During his first semester in Spring 2003, Darcy heard offensive racial slurs, but did not report them because he was trying to fit in and did not have a rapport with his APs. See D. Hayes Dep., p. 87. One incident occurred during his algebra class, when a female student made jokes about him being overweight. After her repeated joking, Darcy told her to "shut the fuck up." The student replied "fuck you, fat nigger." The algebra teacher, Mrs. Schlikert, then walked over and said enough. See D. Hayes Dep., p. 87-88, 101.
On another occasion, when Darcy was in the football locker room, a student called the kids from the rival Port Huron High School niggers." That same student, when referring to a Port Huron High running back, said "we hate that fucking nigger, we need to take him out." See D. Hayes Dep., p. 102.
In the Fall, 2003, after repeatedly hearing the "n" word, Darcy complained to Wojtas and began giving her the names of students who used racial slurs. Darcy complained to Wojtas on 15 to 20 occasions. See D. Hayes Dep., p. 77-78, 163-165. One time was when he heard former Plaintiff, Tiara Long ("Tiara"), addressed by another student as "you nigger." See D. Hayes Dep., p. 165-166. Wojtas said she couldn't do anything because she was not there to hear it, and that it was none of Darcy's business. See D. Hayes Dep., p. 165. Because Philpot was Darcy's assigned AP, he complained to her, too. Philpot said school officials could not do anything unless they heard it. See D. Hayes Dep., p. 82.
Darcy's mother complained numerous times to Wojtas and Philpot about students using the "n" word frequently. Philpot told her there was not much she could do. See Rivera Dep., p. 61. Wojtas said she was unaware of the problem. See Rivera Dep., p. 44-45.
During the 2003 - 2004 school year, Tiara found "die nigger" written on her desk. She also found racist writing in a book. Dahlke confirmed that a teacher, Mrs. Jamison, reported these incidents to an AP or the principal. See Dahlke Dep., p. 234-245, 239-240.
White students regularly called Josh Chapman ("Josh") a "nigger," threw food at him in the cafeteria, and ripped his shirt. See P. Chapman Dep., p. 14-16. On several occasions, Josh fought the students. Josh's mother, Patsy Chapman ("Chapman"), complained to AP Mossett, who said it was difficult to do anything because it was Josh's word against the other student. See P. Chapman Dep., p. 19. Chapman was upset that Josh was being disciplined for reacting to racist behavior that the school did not adequately address. See P. Chapman Dep., p. 15. The racial taunting continued the following year. Josh was told to ignore it, which he did with limited success. See P. Chapman Dep., p. 21-22.
During the 2004 - 2005 school year, Chapman saw two full-sized confederate flags flying on a pick-up truck in the school lot. After the school failed to address it, Chapman complained to AP Mossett. See P. Chapman Dep., p. 28-29. Notwithstanding several conversations Chapman had with Mossett about how offensive the confederate flag is to blacks, several days later the truck was still in the lot with the flying flags. See P. Chapman Dep., p. 32-33. That same school year, someone painted "nigger" on a rock in front of the school. See P. Chapman Dep., p. 35.
Chapman's niece also told Chapman she heard the "n" word at Port Huron Northern. The niece attended Port Huron Northern for one semester, but left because she could not stand the racist comments. See P. Chapman Dep., p. 38-39. Chapman's son, James Chapman ("James"), also heard white students using the "n" word in the hallways. Chapman complained to AP Mossett several times, without result. See P. Chapman Dep., p. 68.
On June 20, 2005, the Board approved a Student Code Handbook, with a policy prohibiting harassment "perceived as being motivated by" race. See Def. Motion, Exh. 12. For a first time violation, the policy required that (1) the student's parents be notified by phone, suspension slip, and/or letter, (2) a conference be held with the involved parties and an administrator or representative, and (3) the student be assigned to detention. At administrative discretion, a first time violation could also result in suspension until parent conferences or contact, and/or up to three school days suspension.
For repeat violations, the harassment policy had two possible consequences. Procedure B required that (1) the student's parents be notified by phone, suspension slip, and/or letter, (2) the matter be referred to the proper police authorities, if appropriate, (3) a conference be held with the involved parties and an administrator, (4) the student be suspended for up to five school days. In repetitive cases or if appropriate, Procedure B allowed a recommendation for expulsion to the Director of Student Services.
The second alternative, Procedure C, required that (1) written procedural memorandums be followed, if appropriate under the circumstances, (2) the student's parents be notified immediately by phone, suspension slip, and/or letter, (3) the matter be referred to the proper police authorities, if appropriate, (3) the student be suspended for ten school days. Procedure C also allowed a recommendation for expulsion to the Director of Student Services, if appropriate.
In September 2005, Chapman told Jones her sons were treated differently based on race. She gave several examples and told him both sons heard the "n" word in school. See P. Chapman Dep., p. 82-83. She had one or two face-to-face conversations, and one or two phone conversations with Jones about the racial slurs. See P. Chapman Dep., p. 85-86. At some point she could no longer reach Jones, and believed that he either did not get her messages or did not return her phone calls. After she could no longer get through to Jones, she decided to go to the Board. See P. Chapman Dep., p. 85-88.
Dahlke was hired as principal of Port Huron Northern after the start of the 2005 -2006 school year. On October 26, 2005, within days of Dahlke's start date, a racist poster was left on Tiara's locker. The poster included a confederate flag and the words "Rebel - The south will rise - Death to all Niggers," and the words "If this offends you screw off, & get bent!" See Pl. Brief, Exh. 4. The next day, she found another racist note inside her locker. The following day or several days later, the word "nigger" was scrawled on Tiara's locker. See Dahlke Dep., p. 235-237. Dahlke removed the slur, and in an effort to catch the responsible party, Dahlke secretly placed a hidden camera in a nearby classroom; his efforts were not successful. Dahlke and Tiara's mother contacted police. Dahlke cooperated with the police investigation.
Shortly after the locker incident, a staff member advised Dahlke that several vehicles in the student parking lot had depictions of confederate flags on or inside the vehicles. Dahlke determined the drivers of those vehicles and immediately sent them to their cars to remove or cover the stickers so they were not visible. When Dahlke saw the confederate flag on students' clothing, he directed them to remove the offending item or face disciplinary action. There were several occasions when Dahlke instructed students to remove the confederate flag from their clothing. See Def. Motion, Exh. 7.
Also in October 2005, Chapman experienced a racially motivated incident after she left a meeting at Port Huron Northern. Five students were inside a red T-bird, which slowed down directly in front of Chapman's car. The students called Chapman a "nigger," gave her the middle finger, and then, drove off. That same day, when she reported the incident to AP Mossett, he looked up the owner of the car and allegedly told Chapman he didn't believe the incident happened. See P. Chapman Dep., p. 71.
During the 2005 - 2006 school year, Natasha was pointed at by white students and called a "nigger." See Thames Dep., p. 61-62. Zenia heard white students using the "n" word loudly many times in public with teachers present. Kevina also heard whites saying "nigger" almost every day. See Jackson Dep., p. 65. Kevina also found a confederate flag drawn in a classroom textbook. See Jackson Dep., p. 35. When Kevina showed it to her teacher, Ms. Kearns, Kearns looked at it and said it wasn't the first time she'd seen something like that. Kevina had to continue using the book. See Jackson Dep., p. 35. Joshua, Tiara, Zenia, and Kevina complained to Philpot that white students were using racial slurs in the halls. See Portis Dep., p. 41-42. For example, one student said "I don't like niggers," every time Joshua walked by. See Portis Dep., p. 37-38. Joshua also saw racial graffiti in the bathroom near the lunchroom. Philpot said she could not do anything about it. See Portis Dep., p. 43.
Around this time, Philpot formed a diversity group of concerned parents and community members to advise Dahlke and brainstorm on ideas to address the racist locker incidents and broader diversity issues at the school. (Defendants say Dahlke formed the group). Along with Philpot and Dahlke, the group included the local NAACP President, a retired black principal, a black staff member, a pastor, and parents of some of the student Plaintiffs.
On November 2, 2005, Philpot emailed Dahlke to complain that several black students expressed a desire to leave Port Huron Northern due to the racially hostile environment. She requested an immediate discussion with the administrative team. See Def. Motion, Exh. 9. Philpot heard teachers say they did not think it was a big deal what was going on. See Philpot Dep., p. 99.
On November 4, 2005, Dahlke recorded a video and played it over the school's in-house video monitor. He displayed the racist poster and reminded the students the behavior was inappropriate. Dahlke also asked students to come forward if they had information about the person responsible for the drawing. Two students came forward. The drawing apparently had been stolen from the artist and another person placed it in Tiara's locker. See Def. Motion, Exh. 7. The artist, who by that time was incarcerated in the juvenile detention facility on unrelated offenses, was expelled. It is unclear if the person who placed the drawing in the locker was punished.
On November 8, 2005, Dahlke held a meeting for the minority students. All Plaintiffs were present, except Gregory. It was discussed that some of the Plaintiffs used the "n" word and its derivatives at school, and that led white students to also use the word. Dahlke told the minority students not to use the "n" word, and to report its use when they heard it. See Dahlke Dep., p. 96. When the white students learned of the meeting, Darcy says they cracked jokes, asking if it was a "nigger meeting" or "only niggers allowed." See D. Hayes Dep., p. 108. No similar meeting was held with the white students.
On November 21, 2005 and December 19, 2005, Chapman addressed the Board regarding the persistent racial harassment at Port Huron Northern. Board members Crosby, Demashkieh, Hering, Kovar, Meeker and Stout were present at both meetings. See. Pl. Brief, Exh. 7. At the November meeting, Chapman told the Board about (1) seeing and reporting the truck with the confederate flag, (2) the racial slurs, (3) the offensive gestures by the white students in the red T-bird, (4) continued use of the "n" word, and (5) racist graffiti. At the December meeting, Chapman displayed a blow-up picture of the "Death to all Niggers" poster and distributed copies to each board member. There is no evidence the Board directed any response to Chapman's concerns.
The racial incidents continued in early 2006. "Ms. Philpot is a nigger," was scrawled on the wall in the Math wing. See Philpot Dep., p. 165. Racist graffiti was found in the bathroom on several occasions. One day, when Darcy was walking the upstairs hallway with his white girlfriend, another student said "you nigger loving bitch," in front of Ms. Kearns. When Darcy responded by calling the student a "bitch," he alleges Kearns told him not to say "bitch" out loud, but did not chastise the student who made the slur. See D. Hayes Dep., p. 83. According to Darcy, on multiple occasions, students would say "nigger" in front of certain teachers and the teachers ignored the slurs. See D. Hayes Dep., p. 83.
In April or May 2006, a text book with racist scrawlings was left inside Philpot's office. Upon closer review, Dahlke discovered a "Hit List" inside the book. The first page of the book had "KKK" and "I will kill all of you" written on it. The following page had a drawing of a noose and the written words "Hit List," along with a list of targeted blacks. Several student Plaintiffs and Philpot appear on the list. The book is filled with slurs and threats such as, "hanging & killing the little niglets," "I beat niggers to death with these" (with an arrow pointing to a photo of an oar), "I want to hang Mrs. Philpot Nigga," and "kill all niggers." The book also has a drawing of a swastika and the word "Nazi." See Def. Motion, Exh. 20. The Hit List story was covered by the Detroit television news stations and the Port Huron Times Herald.
A week before the discovery of the hit list, Natasha saw one student show another student a gun in his backpack. This frightened Natasha even more when the hit list came out. Natasha and her mother gave Dahlke the student's name. See Nurenberg Dep., p. 73. On May 12, 2006, Dahlke told Jones of a separate threat that someone was going to shoot everyone on the hit list. See Jones Dep., p. 203-204. Frightened about their safety, some Plaintiffs stayed home for several days after discovery of the hit list. A week later, an unidentified black student made a written complaint that a student directly behind him screamed "I hate niggers" while walking out of class.
Port Huron Northern hired three management consultants to conduct a study on the learning environment at Port Huron Northern and to give findings and recommendations. In their report, the consultants determined that the racially charged atmosphere developed at Port Huron Northern over an extended period of time, and was the result of a series of events, rather than a single episode. The consultants opined that policies regarding student conduct, including racial slurs, were not uniformly enforced by Port Huron Northern staff, and the absence of firm, decisive action encouraged continuation of harassment. See Pl. Brief, Exh 8.
At the suggestion of the consultant team, Dahlke held three grade-level assemblies at the end of the 2005 - 2006 school year. Dahlke told the students that everyone should be treated with respect and dignity. Dahlke offered anonymity and protection from retaliation for students who reported violators. See Dahlke Dep., p. 97-100. Dahlke noticed an increase in reports of violations for 2006 - 2007 school year. See Dahlke Dep., p. 105-106. However, the racial slurs and incidents continued that school year. See Pl. Brief, p. 22-27.
Plaintiffs say the exodus of black students from Port Huron Northern is the clearest proof that racial harassment interfered with their education. For the 2006 -2007 school year, approximately 15 black students transferred from Port Huron Northern to Port Huron High. Several others dropped out or left the school district altogether. See Pl. Brief, p. 21.
Plaintiffs allege Defendants were "deliberately indifferent" to the harassment, and the racially hostile environment was the result of a lack of minority administrators and teachers at Port Huron Northern and lax enforcement of school anti-discrimination and harassment ...