Opinion
Case No.: 00-CV-72842-DT
May 31, 2001
OPINION
On June 7, 2000, Plaintiffs filed an eight-count complaint in the Macomb County Circuit Court against the above-named Defendants after Plaintiff Katelyn Ward was not selected for the Eisenhower High School Dance Team. On June 22, 2000, Defendants removed the action to this Court. This matter is currently before the Court on Defendants' motion for summary judgment. The Court entertained oral argument on March 29, 2001. Following the hearing, the parties also submitted supplemental briefs at the Court's request. For the reasons set forth below, Defendants' motion for summary judgment shall be granted as to all Defendants except Defendant Marianne Thornton.
Background
Plaintiff Katelyn Ward ("Katelyn") is a senior at Eisenhower High School in the Utica Community School District. In previous years, Katelyn had been on the Eisenhower High School Dance Team (the "Dance Team"). All parties agree that prior to Katelyn's senior year the school had been experiencing problems with the operation of the Dance Team. In response to these problems, a "Parent Board" was formed where parents would periodically meet to discuss concerns regarding the Dance Team. By all accounts, Katelyn's parents, Plaintiffs Michael and Deborah Ward, had an active interest in Katelyn's involvement with the Dance Team and participated in the Parent Board.
On several occasions in January of 2000, Mr. Ward voiced complaints and expressed concerns regarding the Dance Team to the Parent Board and to school officials. In addition, Mr. Ward and Defendant Marianne Thornton ("Thornton"), a parent of another Dance Team member, had a verbal altercation following a basketball game at the school in January of 2000. After this incident with Mr. Ward, Defendant Thornton "told her friend Ms. Lowery and Utica Community School District Personnel of the verbal altercation." (Defs.' Mot. for Summ. J. at 21). Thornton admits that she stated that "Mr. Ward threatened and intimidated her," and that she stated "Michael Ward told her that he was `going to bring her down.'" (Defs.' Mot. for Summ. J. at 22).
The Court notes that various pleadings refer to Marianne Thornton as Marianne "Thorton." In fact, even Ms. Thornton's affidavit spells her last name as Thorton. However, as she signed her last name as "Thornton," the Court will assume that is the correct spelling of her name.
In April of 2000, the "Eisenhower Dance Team Constitution" was written and distributed, specifying the rules that were applicable to the Dance Team. ( See Pls.' Ex. 17). One such rule pertaining to the Dance Team was that seniors are not eligible for the junior varsity Dance Team. ( Id. at 2).
In April of 2000, auditions were held in order to select the members for the 2000-2001 Dance Team. Although Katelyn auditioned, she was not selected for the varsity Dance Team. Defendants acknowledge that Katelyn scored well enough to make the junior varsity team, but due to her senior status she was not placed on the junior varsity team.
On June 7, 2000, Plaintiffs filed suit against various Defendants in Macomb County Circuit Court. The Defendants in this case include: former Eisenhower High School Principal Art Thomas, current Eisenhower High School Principal Robert Van Camp, Athletic Director Bruce Hart, Dance Team coaches Heidi Haras, Deborah Martin-Carlisle, and Tammy Martin-Allagreen, and the Board of Education of the Utica Community Schools. The remaining Defendants, Marianne Thornton, Karen Lowery, Pamela DeBusscher, Kathy Haras, Nancy Johnston, and Ollie Michels, are parents of participants on the Dance Team who were members of the Parent Board. Plaintiffs allege the following claims:
1) Plaintiffs' complaints regarding the Dance Team were protected speech under the First Amendment and Defendants unlawfully retaliated against them for exercising their constitutional rights (Count I.);
2) Plaintiffs had a liberty interest in the participation of Katelyn Ward on the Dance Team, protected by the Due Process Clause, and Defendants violated Katelyn's right to procedural due process by excluding Katelyn Ward from the Dance Team through arbitrary rules and policies (Counts II. and III).
3) Defendants violated Plaintiff Katelyn Ward's right to equal protection when they intentionally treated her differently from other similarly situated girls trying out for the Dance Team and there is no rational basis for the difference in treatment (Count IV.);
4) Defendants Hart, Thomas and/or Van Camp violated Plaintiff Katelyn Ward's right to confidentiality of school records in violation of FERPA (Count V.);
5) Defendant Thornton slandered Plaintiff Michael Ward (Count VI);
6) Defendants engaged in a conspiracy to violate Plaintiffs' civil rights in violation of § 1983 (Count VII.); and
7) Defendants Van Camp and the School Board are liable for injuries resulting from their own acts or omissions, and they are liable for the actions of its employees and/or agents.
On June 22, 2000, Defendants removed the action to this Court based upon federal question jurisdiction. On January 31, 2001, Defendants filed the instant motion for summary judgment.
Standard of Review
Summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). When determining whether there is a genuine issue for trial, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); accord Matsushita Elec. Indus. Co., Ltd v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "Although [the nonmoving party] is entitled to a review of the evidence in the light most favorable to him or her, the nonmoving party is required to do more than simply show that there is some `metaphysical doubt as to the material facts.'" Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir. 1994) (quoting Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356).
Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting FED. R. CIV. P. 56(e)). "The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.
Discussion
First Amendment Claim (Count I)
In Count I, brought under 42 U.S.C. § 1983, Plaintiffs allege that their complaints regarding the Dance Squad were protected speech under the First Amendment and that Defendants unlawfully retaliated against them for exercising their constitutional rights. At the hearing, Plaintiffs counsel clarified that it is Plaintiffs' position that Defendants retaliated against Plaintiffs for complaints Mr. Ward made regarding the Dance Team in January of 2000 by changing the rules applicable to the Dance Team, so as to exclude Katelyn from the team. The two rules that Plaintiffs believe were changed in retaliation for Mr. Ward's speech are: 1) the rule permitting freshman to be placed on the varsity Dance Team, and 2) the rule prohibiting seniors from being placed on the junior varsity Dance Team.
A retaliation claim has three elements: 1) protected conduct by the plaintiff, 2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in the conduct, and 3) a causal connection exists between the first two elements. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
Defendants contend that Plaintiffs First Amendment Retaliation claim fails because Plaintiffs cannot establish a causal connection between Mr. Ward's speech and the adoption of the rules at issue, as the rules were in place in May of 1999 — before Mr. Ward's speech occurred. Athletic Director Hart testified that the Dance Team was placed in the athletic department in May of 1999. (Hart Dep. at 17; see also Dilday Aff. at ¶ 3). When the Dance Team came under the jurisdiction of the athletic department, it, unlike all the other programs already in place, did not have written team requirements. (Hart Dep. at 53-54). However, at that time there was a district-wide procedure" or rule that allowed freshmen to be eligible for varsity teams and disallowed seniors on junior varsity teams. (Hart Dep. at 56). Hart testified that these rules were applied across the board to all programs under the jurisdiction of the athletic department. (Hart Dep. at 57). Thus, Defendants assert that when the Dance Team came under the jurisdiction of the athletic department in May of 1999 it was required to comply with the athletic department's rules of allowing freshman on the varsity team, and not allowing seniors on the junior varsity team. Although the Eisenhower Dance Team Constitution, containing the rules at issue, may not have been created until April of 2000, Defendants contend the Constitution did not "change" the rules at issue. Rather, Defendants contend the Constitution merely stated the athletic department rules that were already in place for the Dance Team as of May of 1999.
Hart testified that in his career as Athletic Director, there have been only two exceptions to the rule allowing a senior to be placed on a varsity team. For example, a senior foreign exchange student with limited skills, who wanted the experience of participating on the team, was allowed to play on a junior varsity team. However, Hart explained that such exceptions require knowledge and consent of all the coaches in the division. (Hart Dep. at 59-60).
Plaintiffs have offered no evidence to contradict Defendant's position that the Dance Team was placed in the athletic department in May of 1999, and therefore from that date on, bound by the athletic department's rules. Rather, Plaintiffs focus their attention on the fact that another high school in the same district, Henry Ford, did not adopt the district-wide rules in question for its Dance Team. Plaintiffs argue that the purported purpose of placing the Dance Team in the athletic department was to provide for uniformity, and that Hart was aware at the time of drafting the Constitution that Henry Ford had different rules, but yet "he changed the rules . . . despite the existence of a different policy at Henry Ford and contrary to the policy of uniformity." (Pl.'s Supp. Br. at 8). However, the issues of whether another school may have been in violation of the district-wide rules, or whether the adoption of the rules may have been contrary to the stated objective of achieving uniformity, are irrelevant to the question of when the rules in question were put in place for the Eisenhower High School Dance Team.
Defendants have presented uncontradicted evidence that the Dance Team came under the auspices of the athletic department in May of 1999, and as such, it was bound by the district-wide rules of not allowing seniors on the junior varsity team and allowing freshman on the varsity team since that date. As the rules at issue were in place before Mr. Ward's speech, Plaintiffs cannot establish a causal connection between his speech and the alleged adverse action, i. e., the "changing of the rules." Accordingly, Defendants are entitled to summary judgment on Plaintiffs' First Amendment retaliation claim.
Plaintiffs have also alleged other "adverse actions," such as the surveillance of Mr. Ward at a basketball game on school grounds following his altercation with Defendant Thornton, and Hart calling Katelyn to his office on two occasions to distribute documents pertaining to the Dance Team. However, the Court is not satisfied that this conduct constitutes an "adverse action" that would deter a person of ordinary firmness from continuing to voice complaints, or that this conduct is of such significance that would justify a cause of action.
Procedural Due Process Claim (Counts II and III)
In Counts II and III, Plaintiffs assert a claim under 42 U.S.C. § 1983, asserting that they had a liberty interest in the participation of Katelyn Ward on the Dance Team that is protected by the Due Process Clause, and that Defendants violated this liberty interest by excluding Katelyn from the Dance Team through arbitrary rules and policies.
"[I]n a § 1983 due process claim for deprivation of a property interest, a plaintiff must first show a protected property interest. Only after meeting this requirement can the plaintiff prevail by showing `that such interest was abridged without appropriate process.'" Ferencz v. Hairston, 119 F.3d 1244, 1247 (6th Cir. 1997).
In their Motion for Summary Judgment, Defendants contend that "Plaintiffs have failed to set forth a violation of due process rights due to the fact that Katelyn did not have a property interest in participation in the dance squad." (Defs.' Mot. for Summ. J. at 9). Defendants rely on Seamons v. Snow, 84 F.3d 1226, 1235 (10th Cir. 1996), where the Tenth Circuit determined that "the innumerable separate components of the educational process, such as participation in athletics and membership in school clubs, do not create a property interest subject to constitutional protection. Id. at 1235.
Apparently, Plaintiffs do not dispute Defendants' position that Katelyn did not have a constitutionally protected property interest in being on the Dance Team. In response, Plaintiffs state "Plaintiffs do not maintain that Katelyn Ward had a Constitutional right to be on the Dance Team." (Pls.' Resp. at 16). Rather, Plaintiffs contend that Katelyn "had an interest bestowed by Michigan law in the fair promulgation and application of rules by school officials" enforceable under the Fourteenth Amendment. ( Id.). Nonetheless, Defendants have failed to present any authority for their position that students have a protected property interest in the fair promulgation and application of rules by school officials with respect to extracurricular activities, such as the Dance Team.
Without first showing that Katelyn has a protected property interest with respect to the Dance Team, Plaintiffs cannot prevail by showing that her interest was "abridged without appropriate process." Accordingly, Defendants are entitled to summary judgment on Plaintiffs' procedural due process claim.
Equal Protection Claim (Count IV)
In Count IV, Plaintiffs assert an equal protection claim. Plaintiffs bring their equal protection claim based on a recent Supreme Court case, Village of Willowbrook, 528 U.S. 562, 120 S.Ct. 1073 (2000). (Pls.' Resp. at 16-17). In that case, the court recognized "equal protection claims brought by a `class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Id. at 1074. Apparently, Plaintiffs contend that Katelyn was intentionally treated differently than other girls who tried out for the Dance Team, and that there is no rational basis for the difference in treatment.
In support of their motion for summary judgment, Defendants contend that the rules regarding the Dance Team were enforced uniformly and that "Plaintiffs have failed to show how any rule was applied to only Katelyn Ward." (Defs.' Reply at 2). Furthermore, Defendants contend that Plaintiffs have failed to establish that the persons who decided that Katelyn would not be on the Dance Team had any ill will towards Plaintiffs. (Defs.' Reply at 2). Defendants have provided the affidavits of Defendants Heidi Haras, Tammy Martin-Allagreen and Deborah Martin-Carlisle, who all testified that Mr. Ward's conduct did not influence their judging of Katelyn and that girls were chosen for the Dance Team based on skill. ( See Affidavits of Haras, Martin-Allagreen, and Martin-Carlisle).
Defendants contend that Katelyn was treated differently than other girls who tried out for the Dance Team in that the coaches did not increase the size of the Dance Team to make room for Katelyn, a returning senior, although in the previous year they increased the team size in order to make room for a senior who had not made the team as initially posted. (Pls.' Resp. at 10). Plaintiffs cite the "Affidavit of K. Ward" as evidence of this alleged disparate treatment. However, the affidavit of Katelyn Ward, included in Plaintiffs exhibits, does not mention this alleged incident.
As Plaintiffs have offered no evidence to show that Katelyn was intentionally treated differently than other girls who tried out for the Dance Team, Defendants are entitled to summary judgment on Plaintiffs' equal protection claim.
FERPA Claim (Count V)
In Count V, Plaintiffs assert that Katelyn has a right to confidentiality in her school records, as protected by the Family Education Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g. Plaintiffs contend that Defendants Hart, Thomas, and/or Van Camp violated FERPA by disseminating confidential information to Defendants Thornton and Lowery. (Compl. ¶ 47).
In their motion for summary judgment, Defendants contend that Plaintiffs FERPA claim fails because Plaintiffs have brought this claim against "inappropriate parties." (Defs.' Mot. for Summ. J. at 15). The Court agrees. "FERPA by its terms applies only to educational agencies. See 20 U.S.C. § 1232g(1)(A)." Desmone v. Adams, 165 F.3d 27, 1998 WL 702342 (6th Cir. 1998). Because Defendants Hart, Thomas and Van Camp are not "educational agencies," Plaintiffs have no cause of action against them under FERPA. Id.
Civil Rights Conspiracy Claim (Count VII)
In their Motion for Summary Judgment, Defendants contend that all claims against certain members of the Parent Board must be dismissed. Defendants contend that there is no factual basis to continue suit against Defendants Karen Lowery, Pamela De Busscher, Kathy Haras, Nancy Johnson and Ollie Michels.
In response to Defendants' motion for summary judgment, it appears that Plaintiffs contend that all Defendants, including those parents named above, are liable for the alleged constitutional violations because they participated in a civil rights conspiracy. In Count VII, Plaintiffs allege that Defendants engaged in a civil rights conspiracy to deprive Plaintiffs of rights or privileges secured by the United States Constitution, in violation of § 1983.
"An action for civil conspiracy may be brought under 42 U.S.C. § 1983." Hansen v. Westerville City School District, Board of Education, 43 F.3d 1472, 1994 WL 622153 at 8 (6th Cir. 1994) (citing Adickes v. S.H Kress Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). "A civil conspiracy is an agreement between two or more persons to injure another by unlawful action." Hooks v. Hooks, 771 F.2d 935, 943 (6th Cir. 1985). Defendants contend that "[w]ithout evidence that would suggest Defendants reached an understanding to act to deprive Katelyn Ward of her rights, any conspiracy claim must fail." (Defs.' Reply at 3).
In response to Defendants' contention that Plaintiffs have no evidence of an agreement, Plaintiffs state that "circumstantial evidence of a general agreement between all of the Defendants to deprive Plaintiffs of their Constitutional rights exists." (Pls.' Resp. at 26). Plaintiffs then allege actions that they believe constitute circumstantial evidence of an agreement among Defendants to deprive Plaintiffs of their constitutional rights. However, Plaintiffs fail to provide the Court with any evidence to support these allegations.
As Plaintiffs have failed to offer any evidence of an agreement between Defendants to violate Plaintiffs' civil rights, Defendants are entitled to summary judgment on this claim.
Liability of Van Camp and School Board (Count VIII)
In Count VIII, Defendants assert that Defendants Van Camp and the School Board are liable for injuries occurring from their own acts or omissions, and that they are liable for the actions of its employees and/or agents. Having concluded that all of Plaintiffs' claims other than Plaintiffs slander claim against Defendant Thornton, a parent of another Dance Team member (Count VI), should be dismissed, Plaintiffs cannot prevail on their claims against Defendants Van Camp and the School Board as asserted in this count. Therefore, Defendants Van Camp and the School Board are entitled to summary judgment on this claim.
Conclusion
For the reasons set forth above, Defendants' Motion for Summary Judgment shall be granted as to Counts I, II, III, IV, V, VII, and VIII of Plaintiffs' complaint, and all Defendants except Marianne Thornton shall be dismissed.
Having dismissed all of Plaintiffs' federal claims, this Court declines to exercise supplemental jurisdiction over Plaintiffs' remaining state law claim against Defendant Thornton (Count VI). After dismissing a plaintiffs federal claims, a district court has the authority to remand to state court, rather than dismiss, the remaining state law claims. Long v. Bando Mfg. of America, 201 F.3d 754 (6th Cir. 2000). When all federal claims are eliminated before trial, "the balance of factors to be considered under the [supplemental] jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 619 n. 7, 98 L.Ed.2d 720 (1988); accord Landefeld v. Marion General Hosp. Inc., 994 F.2d 1178, 1182 (6th Cir. 1993). Accordingly, Plaintiffs' slander claim against Defendant Thornton shall be remanded to the Macomb County Circuit Court.
An Order consistent with this opinion shall issue forthwith.