Nabozny v. Podlesny
Appellant's Brief
IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
NO. 95-3634 _________________________________________________________________
JAMIE STUART NABOZNY,
Plaintiff-Appellant
v.
MARY PODLESNY, individually, and in her capacity as Principal at Ashland Middle School; WILLIAM DAVIS, individually, and in his capacity as Principal of Ashland High School; THOMAS BLAUERT, individually, and in his capacity as Assistant Principal of Ashland High School; STEVEN KELLY, individually, and in his capacity as Administrator of the Ashland Public School District, and the ASHLAND PUBLIC SCHOOL DISTRICT,
Defendants-Appellees _________________________________________________________________
Appeal from the United States District Court for the Western District of Wisconsin
No. 95-C-0086-S
John C. Shabaz
Presiding Judge
APPELLANT'S BRIEF
Patricia M. Logue
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
17 E. Monroe, Suite 212
Chicago, IL 60603
(312) 759-8110
David S. Buckel
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
666 Broadway, 12th Floor
New York, New York 10012
(212) 995-8585
Attorneys for Appellant
_________________________________________________________________
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
TABLE OF AUTHORITIES
JURISDICTIONAL STATEMENT
STATEMENT OF THE CASE
ISSUES PRESENTED FOR REVIEW
RELEVANT STATUTES AND CONSTITUTIONAL PROVISIONS
STATEMENT OF FACTS
Seventh Grade (1988-89)
Eighth Grade (1989-90)
Ninth Grade (1990-91)
Tenth and Eleventh Grades (1991-92)
School Harassment Policies and Incidents Involving Other Students
SUMMARY OF ARGUMENT
ARGUMENT
I. THE DISTRICT COURT'S GRANT OF SUMMARY JUDGMENT ON THE MERITS AND ON THE BASIS OF QUALIFIED IMMUNITY IS SUBJECT TO DE NOVO REVIEW; THE PRESENCE OF GENUINE ISSUES OF MATERIAL FACT REQUIRES REVERSAL.
II. JAMIE'S CLAIM THAT HE WAS DENIED PROTECTION FROM HARM BECAUSE HE IS A GAY BOY STATED A VALID EQUAL PROTECTION CLAIM BASED ON CLEARLY ESTABLISHED CONSTITUTIONAL RIGHTS AND JAMIE DEMONSTRATED GENUINE ISSUES FOR TRIAL ON THAT CLAIM.
A. Jamie Had An Equal Protection Right Not to be Denied Protection From Harm Because of His Sexual Orientation or Gender; Reasonable Officials Would Have Known That Failing to Protect Him Was Unconstitutional.
1. Jamie stated a valid equal protection claim.
2. Defendants are not entitled to qualified immunity.
B. Genuine Issues of Material Fact Preclude Summary Judgment on Jamie's Equal Protection Claim; Jamie Provided Significant Evidence of Discriminatory Intent.
III. THE DISTRICT COURT ERRED IN FINDING INSUFFICIENT EVIDENCE THAT SCHOOL OFFICIALS ENHANCED THE RISK OF HARM TO JAMIE AND IN HOLDING THAT SCHOOLS CAN ESCAPE LIABILITY FOR ENCOURAGING STUDENTS TO HARM OTHER STUDENTS; THERE ARE GENUINE ISSUES OF MATERIAL FACT AS TO EACH OF THESE DUE PROCESS CLAIMS.
A. There are Genuine Issues for Trial on Jamie's Due Process Claim That School Officials Enhanced the Risk of Harm to Him.
B. Defendants Can Be Held Liable For Encouraging a Climate to Flourish in Which Students Freely Abused Jamie; They Are Not Entitled to Qualified Immunity And Genuine Issues of Material Fact Require Reversal.
IV. CONCLUSION
TABLE OF AUTHORITIES
CASES
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977)
Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989)
Bohen v. City of East Chicago, 799 F.2d 1180(7th Cir. 1986)
Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982)
City of Canton v. Harris, 489 U.S. 378 (1989)
D.R. by L.R. v. Middle Bucks, 972 F.2d 1364 (3rd Cir. 1992)
DeShaney v. Winnebago County Dep't of Social Serv., 489 U.S. 189 (1989)
Doe v. Board of Educ. of Hononegah Community High School Dist. 207, 833 F. Supp. 1366 (N.D. Ill. 1993)
Doe v. Evanston Township Consolidated Sch. Dist. 202, No. 93 C 1011, 1994 WL 55652 (N.D. Ill., February 23, 1994)
Doe v. Paukstat, 863 F. Supp. 884 (E.D. Wis. 1994)
Elliot v. New Miami Board of Educ., 799 F. Supp. 818 (S.D. Ohio 1992)
Harlow v. Fitzgerald, 457 U.S. 800 (1982)
Hawk v. Perillo, 642 F. Supp. 380 (N.D. Ill. 1985)
Ingraham v. Wright, 430 U.S. 651 (1977)
J.O. v. Alton Community Unit School Dist. 11, 909 F.2d 267 (7th Cir. 1990)
Jackson v. Byrne, 738 F.2d 1443 (7th Cir. 1984)
Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir.1983)
Lowers v. City of Streator, 627 F. Supp. 244 (N.D. Ill. 1985)
McDonald v. Haskins, 966 F.2d 292 (7th Cir. 1992)
Monell v. New York City Dep't of Social Serv., 436 U.S. 658 (1978)
Monroe v. Pape, 365 U.S. 167 (1961)
Muckway v. Craft, 789 F.2d 517 (7th Cir. 1986)
Olshock v. Village of Skokie, 541 F.2d 1254 (7th Cir. 1976)
Owen v. City of Independence, 445 U.S. 622 (1980)
Oyler v. Boles, 368 U.S. 448 (1962)
Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979)
Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993), cert. denied, 114 S.Ct. 389 (1993)
Rochin v. California, 342 U.S. 165 (1952)
Roger v. Yellow Freight Sys., Inc., 21 F.3d 146 (7th Cir. 1994)
Stauffer v. Orangeville School Dist., No. 89 C 20258, 1990 WL 303595 (N.D.Ill., July 31, 1990)
Stoneking v. Bradford Area School Dist., 882 F.2d 720 (3rd Cir. 1989)
Triad Associates, Inc. v. Robinson, 10 F.3d 492 (7th Cir. 1993)
United States v. Falk, 479 F.2d 616 (7th Cir. 1973)
Van Hoegan abusing Jamie in the seventh grade, persisted in the abuse and participated in the most assaultive incidents during Jamie's nearly five-year ordeal, including the simulated rape in front of a class, JN Aff. at par. 4; JN Dep. at 72-73, and the urination assault in the student bathroom. JN Dep. at 83-84. Stephen Huntley assisted Roy Grande in the urination assault by kneeing Jamie to the floor, id., and it was Huntley who kicked Jamie so brutally as to require abdominal surgery and rehospitalization for internal bleeding and throwing up blood. JN Dep. at 34-36, 95-6, 107-108; RN Dep. at 68.
Indeed, the school took more steps to degrade and isolate Jamie than it did to punish his attackers. Far from expelling the lead perpetrators, for example, the school placed Jamie in the special education class, RN Dep. at 55, when both Roy Grande and Stephen Huntley were special education students. JN Dep. at 93; Blauert Dep. at 43. This act was part of a pattern that highlighted the school's message to students that abuse of a boy because he is gay would be accommodated at his expense, not the perpetrators' expense. The pattern included placing Jamie in different classes, placing him in a separate part of the bus, placing him in the special education class and forcing him to use a separate bathroom. Such affirmative acts by the school emphasized the message that Jamie was unworthy of respect and worthy of further abuse.
Unlike other cases considered by this Court, the harm attributed to the State here is not from an isolated incident. See, e.g., Bowers, 686 F.2d 616; Jackson, 715 F.2d 1200. Defendants' long pattern of assuming the role of disciplinarian, yet returning Jamie to his abusers without effectively disciplining them, enhanced the risk of further harm. The abusive students received the clear message that their verbal and physical assaults of Jamie would be tolerated, a fact which would encourage them to continue and escalate the abuse, particularly given their age and immaturity.(12) The very existence of the school's array of progressive disciplinary measures recognizes that schoolchildren who are not given clear lines for their unacceptable conduct will predictably persist and escalate its gravity. Yet defendants did not use their full disciplinary powers. As a result, the abuse continued unabated until it finally drove Jamie from the school, from his family, and from his entitlement to an education and a childhood like everyone else's.
This case is also distinctive in that the harm occurred within the government's domain. For example, it is not a case where government is faulted for actions by an ex-patient off government property, Bowers, 686 F.2d 616, or for failing to pull bodies from a burning car on a highway, Jackson, 715 F.2d 1200. Here, the school is faulted for harm to a student compelled to be present on school property, and only the school is in the position to address the harm through discipline. In this respect, schools are a unique environment.(13) Stauffer, 1990 WL 303595 at *3 (App. A-16) ("Although the State has no general duty to protect students from the torts of third parties, this duty could conceivably be imposed under the facts of this specific case.") Indeed, in assuming the parents' role under the heading of in loco parentis, schools have sought and won the right to inflict corporal punishment for disciplinary reasons, which underscores the schools' power and duty to address harms to schoolchildren. Ingraham v. Wright, 430 U.S. 651 (1977).
In addition, Jamie and his parents made repeated attempts to take actions that were within their control. Jamie's parents made every reasonable effort to seek a halt to the abuse of their son at school by repeated calls and meetings. E.g., RN Dep. at 37, 39, 41-2, 49, 64, 67-8. They attempted alternate schooling. E.g., RN Dep. at 36. Jamie himself, following years of reported abuse, attempted to escape the terror by running away. CN Dep. at 36. He requested as a condition for returning to his family and his hometown that he not be forced to return to the abusive school environment. JN Dep. at 61. His parents agreed and attempted home schooling but it did not work out. CN Dep. at 67-68; RN Dep. at 61-64. The nearby Catholic school did not go past the eighth grade. RN Dep. at 44. State authorities then directed Jamie's parents to return him to Ashland High School where he had to face the terror anew. CN Dep. at 67-68; RN Dep. at 61-64. The terror included not only further abuse but ineffective and demeaning segregation. RN Dep. at 55, JN Dep. at 93; Blauert Dep. at 43.
This Court has observed that the Framers of the Fourteenth Amendment could not have been thinking of due process protections for an isolated fire, or auto accident, or a one-time careless policeman, Jackson, 715 F.2d at 1205, but clearly they did have in mind deliberate indifference by state actors to violence over a sustained period of time. This Court has further observed that the Due Process Clause is concerned more with "negative" liberties, such as government honoring "the right to be let alone," than with "positive liberties," such as government providing assistance at the site of an auto accident. Id. at 1203-04. By continuing to return Jamie's abusers to school with him instead of using common disciplinary measures, including expulsion, and by segregating him in a degrading and dangerous fashion, including placement in the special education class, school officials plainly violated Jamie's "right to be let alone." Id. The school officials here may not be the snakes in the snake-pit, but they are as much active tortfeasors as if they had thrown this child "into a snake pit." Bowers, 686 F.2d at 618.
Jamie has raised a genuine issue of material fact that defendants enhanced the risk of harm to him. Roger, 21 F.3d at 148; Reed, 986 F.2d at 1123. Therefore, the district court erred in granting summary judgment on this claim.
B. Defendants Can Be Held Liable For Encouraging a Climate to Flourish in Which Students Freely Abused Jamie; They Are Not Entitled to Qualified Immunity And Genuine Issues of Material Fact Require Reversal.
A school and its officials also may be liable under Section 1983 if they encourage a climate to flourish in which innocent children, including students, are victimized by others. J.O., 909 F.2d at 273 (citing Stoneking, 882 F.2d at 725).
This is an independent basis for liability . . . which is unrelated to the issue decided in DeShaney. Liability of municipal policymakers for policies or customs chosen or recklessly maintained is not dependent upon the existence of a 'special relationship' between the municipal officials and the individuals harmed.
Stoneking, 882 F.2d at 725. See also Doe v. Paukstat, 863 F.Supp. 884, 888 (E.D.Wis. 1994) ("Paukstat"); Doe v. Board of Educ. of Hononegah Community High School Dist. 207, 833 F.Supp. 1366, 1377-1378 (N.D.Ill. 1993) ("Hononegah"). If a school's deliberately indifferent practices foster a recurrence of abuse, the school can be liable for that harm. It is the State's action in fostering a climate of abuse that allows liability under the Due Process Clause and Section 1983.
The district court recognized this principle but limited its application to circumstances in which schools or their officials encourage teachers to harm students. App. A-6. The district court held that schools or their officials can escape liability, despite their deliberate indifference and its effect on other tortfeasors, if those tortfeasors are students harming other students. App. A-6. The district court provided no reasoning for allowing liability only when schools encourage teachers to abuse students and courts have split on this issue. Compare Doe v. Evanston Township Consolidated Sch. Dist. 202, No. 93 C 1011, 1994 WL 55652 (N.D.Ill., February 23, 1994) *2 n. 1. (App. A-17 to A-19) ("Evanston Township") with Elliot v. New Miami Board of Educ., 799 F. Supp. 818 (S.D.Ohio 1992).
Ironically, the limitation assumed by the district court appears to resurrect the principle of respondeat superior liability, which the Supreme Court has held inapplicable to constitutional torts. Monell, 436 U.S. at 691. Under respondeat superior liability theory, a school would be vicariously liable for the conduct of teachers (and other employees) but not for the conduct of students. However, in recognizing municipal liability under Section 1983, the Supreme Court expressly rejected respondeat superior as a basis for liability.
The reasoning of Monell explains why the district court erred here. The Monell Court, in rejecting the imposition of liability based solely on the employer/employee relationship, concluded that liability of a municipal employer for constitutional torts arises not from the employment of a tortfeasor, but from the fact that the municipality "causes" a tortfeasor to harm another. Id. at 692. The relevant factor for liability is causation, not the employment relationship between the municipal entity and the tortfeasor.(14) A municipality may cause either its employees or a private actor to harm a person. Accordingly, the municipality's liability for its own actions should not turn on whether its joint tortfeasor is an employee or not. The district court's holding is grounded upon theories of vicarious liability and cannot stand. Evanston Township, 1994 WL 55652 at *2 n. 1 (App. A-19).
The authority for the district court's holding (App. A-8) consists of a Third Circuit opinion and a district court opinion which follows it, neither of which offer reasons to warrant contradicting Monell and applying the principle of respondeat superior. See D.R. by L.R. v. Middle Bucks, 972 F.2d 1364 (3rd Cir. 1992) ("Middle Bucks"); Elliot, 799 F. Supp. at 823. Specifically, the court relied upon the Third Circuit's observation that Section 1983 liability may not lie where "private actors committed the underlying violative acts." Middle Bucks, 972 F.2d at 1376. But, as shown above, this view cannot be reconciled with Monell, which established that municipal liability turns on causation (where the municipality is a joint tortfeasor), not upon vicarious liability (where the municipality is not a joint tortfeasor). It is therefore irrelevant whether state actors or private actors committed the underlying violative act, as long as the municipality provided part of the cause for the act.(15)
Based upon the review of the facts in the above section concerning the enhancement of the risk of harm, genuine issues of material fact exist concerning whether or not there was a practice by appellees that fostered a climate in which Jamie was harmed. Stoneking, 882 F.2d at 725 ("... appellants' argument that there was no policy, custom or practice is a merits issue, which we cannot resolve on this interlocutory appeal."). The district court's grant of summary judgment on the merits should therefore be reversed.
The district court also erred in ruling that even if liability existed for school officials encouraging students to harm Jamie, the right to be free from physical abuse by private actors "was not clearly established at the time defendants conduct occurred, and defendants would be entitled to qualified immunity." App. A-9. This plainly is not true as a matter of law with respect to the School District. Owen, 445 U.S. at 650. The court also erred in granting qualified immunity to the individual defendants because the right Jamie asserts was clearly established.
It is not seriously contended that Jamie did not have a constitutional right to attend school without suffering physical abuse as well as sexual and verbal harassment. The Supreme Court, in considering the closely analogous right implicated by corporal punishment in schools, held that among the historic liberties protected by the Due Process Clause was a right to be free from unjustified intrusions on personal security. Stoneking, 882 F.2d at 727 (citing Ingraham, 430 U.S. at 673). Encouraging physical abuse of a student "is an intrusion of the schoolchild's bodily integrity not substantively different for constitutional purposes from corporal punishment by teachers." Stoneking, 882 F.2d at 727. Therefore, Jamie's constitutional right to be free of certain emotional and physical abuse was clearly established by 1977, the date of the Ingraham decision. Indeed, since physical abuse of a student "could not possibly be deemed an acceptable practice, as some view teacher-inflicted corporal punishment, a student's right to be free from such molestation may be viewed as clearly established even before Ingraham." Stoneking, 882 F.2d at 727 (citing Rochin v. California, 342 U.S. 165, 172 (1952) (substantive due process violation occurs where conduct "shocks the conscience")).
Here the emotional and physical abuse encouraged by the school officials through their perpetual failure to remove Jamie's harassers or impose any meaningful disciplinary measures, and through the segregation of Jamie (eventually into the special education class with his principal assailants), clearly rises to the level of unconstitutional harm. Reasonable persons would have known that such conduct is unconstitutional and not entitled to qualified immunity. Triad Associates, 10 F.3d at 496 (no requirement of factually identical case).
The district court put too much emphasis upon whether defendants should have known they could be liable to Jamie for their role in fomenting the conduct of Jamie's classmates. In Triad Associates, 10 F.3d at 498-500, the Court made clear that the issue is "the legality of the conduct of the public official, not the obviousness of his liability to the ultimate plaintiff." Id. at 499. "Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action." Harlow, 457 U.S. at 819. There should indeed be hesitation in the mind of any public school official considering the encouragement of plainly illegal student harassment and physical assaults.
Likewise, there should be no concern for offending the underlying purpose of qualified immunity, which is to prevent fear of unjustified lawsuits from hampering school officials who act responsibly in the discharge of their duties, id. at 814, because it is difficult to envision responsible school officials encouraging over four years of abuse in the manner described. Therefore, the lower court erred in raising the shield of qualified immunity on defendants' behalf. CONCLUSION
For all the reasons stated above, plaintiff-appellant Jamie Nabozny respectfully asks the Court to reverse the district court's grant of summary judgment on his equal protection and due process claims and to remand to the district court for further discovery and trial.
DATED: December 18, 1995
Respectfully submitted,
Patricia M. Logue
Lambda Legal Defense and Education Fund, Inc.
17 E. Monroe, Suite 212
Chicago, IL 60603
(312) 759-8110
David S. Buckel
Lambda Legal Defense and Education Fund, Inc.
666 Broadway, 12th Floor
New York, NY 10012
(212) 995-8585
1. The designation "R. Doc. ___" refers to the docket number entry for the document in the record on appeal. See App. A-13. 2. Because this appeal is from a grant of summary judgment to defendants, the facts (including the exact chronology of events) are presented in the light most favorable to plaintiff Nabozny and are based upon the pleadings, affidavits, depositions, interrogatory answers and admissions on file with the district court. Fed. R. Civ. P. 56(c). These include the depositions of Jamie Nabozny ("JN Dep."), Carol Nabozny ("CN Dep."), Robert Nabozny ("RN Dep."), Thomas Blauert ("Blauert Dep.) and Mary Podlesny ("Podlesny Dep."). The exhibits for all depositions ("Dep. Ex. __") are appended to the Podlesny deposition transcript. Citations are also made to the affidavits of Jamie Nabozny ("JN Aff.") and Jeanne Thompson ("Thompson Aff.") and to pleadings including the Amended Complaint ("Am. Compl."), Defendants' Response to the Plaintiff's First Set of Interrogatories ("Def. Interr. Resp. No. __") and Defendants' Answer ("Answer"). 3. Jamie's mother also testified: "He was a very shy kid. He wasn't the type that would walk down the aisle and say, 'Hi, I'm Jamie, I'm gay.' That just wasn't him. He was very shy and very respectful and just a good kid, so I don't know where she was coming from with him being openly gay." CN Dep. at 29. 4. Although plaintiff agreed at his deposition with records indicating that this hospitalization occurred in the ninth grade, the date and year appear to correspond with the end of eighth grade. JN Dep. at 137. 5. Although conversations with guidance counselors are generally confidential, the counselor is supposed to report allegations such as sexual harassment which are not kept confidential. Blauert Dep. at 49-50. 6. At school, for example, use of the word "fag" was supposed to bring "disciplining from a warning to detention, suspension, parents, to whatever I thought was necessary because then that's unacceptable language and it will not be put up with and not tolerated." Blauert Dep. at 52-3. 7. The district court's equal protection holding reached only Jamie's gender claim. For unexplained reasons, the district court did not acknowledge or rule upon Jamie's sexual orientation claim. App. A-9. This claim was well-pled (Am. Compl. at pars. 31 to 37) and specifically addressed by defendants in their summary judgment memorandum. R. Doc. 24 at 5-7. 8. The additional holding in Monroe that local governments are immune from suit under Section 1983 was overturned in Monell v. New York City Dep't of Social Serv., 436 U.S. 658, 663 (1978). 9. See also Hawk v. Perillo, 642 F. Supp. 380, 384 (N.D.Ill. 1985) (failure of police to investigate and pursue assailants because victim of beating was black stated equal protection claim); Lowers v. City of Streator, 627 F. Supp. 244, 246 (N.D.Ill. 1985) (allegation that police failed to arrest rapist and continue investigation because victim was a woman stated equal protection claim). 10. The School District is not eligible for qualified immunity. Owen v. City of Independence, 445 U.S. 622, 650 (1980). The district court's reference to granting qualified immunity to "defendants" (App. A-9) is imprecise or inaccurate as only individual officials can seek qualified immunity. Id. 11. See also Stauffer v. Orangeville Sch. Dist., No. 89-C-20258, 1990 WL 303595, *3 (N.D.Ill., July 31, 1990) (App. A-14, A-16) ("By allowing Stauffer to go to the restroom unsupervised with another student who had a prior history of sexually abusing others and who had threatened Plaintiff, it is possible that the teacher took the affirmative act of placing Stauffer in a hazardous situation"). 12. "When adults tolerate abusive language, the next step is often physical violence. Lesbian and gay students are pushed, punched, and even severely beaten." Hunter, Joyce & Schaecher, Robert, Gay and Lesbian Adolescents, in Encyclopedia of Social Work 1055, (Richard L. Edwards et al. eds., 19th ed. 1995) 13. Jamie does not argue on appeal that such circumstances constitute "involuntary custody" over him, giving rise to a predicate duty to protect him from random or isolated harms that may or may not be anticipated. J.O. v. Alton Community Unit School Dist. 11, 909 F.2d 267 (7th Cir. 1990). The lack of involuntary custody cannot, however, wholly "privatize" the school grounds. 14. The very language of Section 1983 -- "shall subject, or cause to be subjected, any person" -- suggests that the employer/employee relationship is not relevant. Monell, 436 U.S. at 691 (emphasis added). The Court held this language "suggests that Congress did not intend Section 1983 liability to attach where such causation was absent." Id. at 692. 15. In Middle Bucks, the facts suggest that notice to the school of the harm was limited to one report of one incident, which provides comparatively uncertain ground on which to argue that the school in fact "caused" the students to harm other students. Middle Bucks, 971 F.2d at 1366, 1376.
