United States District Court, D. Minnesota
Jane Doe, John Doe, and Minor Doe, by and through his Legal Guardians, Jane Doe and John Doe, Plaintiffs,
Osseo Area School District, ISD No. 279, Defendant.,
L. Jepsen, Esq., School Law Center, LLC, St. Paul, MN, on
behalf of Plaintiffs.
A. Martin, Esq., Knutson, Flynn & Deans, PA, Mendota
Heights, MN, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
MONTGOMERY, U.S. DISTRICT JUDGE
September 14, 2017, the undersigned United States District
Judge heard oral argument on Defendant Osseo Area School
District, ISD No. 279's (“Osseo” or the
“School District”) Motion for Summary Judgment
[Docket No. 17], and Plaintiffs Jane Doe, John Doe, and Minor
Doe, by and through his Legal Guardians, Jane Doe and John
Doe's (collectively, “Plaintiffs”) Motion for
Summary Judgment [Docket No. 33]. For the reasons set forth
below, Plaintiffs' Motion is denied and Defendant's
Motion is granted.
Graffiti Discovered on November 9, 2016
12:45 p.m. on November 9, 2016, a student discovered racist
graffiti written in whiteout on an inside stall door and
toilet paper dispenser in a boys' bathroom at Maple Grove
Senior High (the “School”). Vernig Decl. [Docket
No. 19] ¶ 3; Kenney Decl. Ex. 1 [Docket No. 25]
(“Hr'g Tr.”) at 46:2-8. The graffiti included
“#Gobacktoafrica, ” “#whitesonly, ”
“#whiteamerica, ” and other racist, hostile
phrases. Vernig. Decl. ¶ 3.
Principal Naida Grussing-Neitzel
(“Grussing-Neitzel”) learned about the graffiti
from a student management specialist. Hr'g Tr. 127:11-13.
Grussing-Neitzel directed that the bathroom with the graffiti
be locked, and that the rest of the school's bathrooms
and locker rooms be checked for possible graffiti.
presence of the graffiti spread quickly among the students
through social media causing significant tension.
Id. 130:14-20; 217:10-17. The School staff was fully
occupied responding to distraught and concerned students.
Id. 130: 7-12. The School was also fielding an
“avalanche of calls” about the graffiti,
including over 19 media inquiries within a few hours after
the graffiti was discovered. Id. 130:7-20;
The School's Investigation
of the large number of black students enrolled at the School,
Grussing-Neitzel determined that the graffiti posed a student
safety issue. Id. 130:21-131:4. She quickly
initiated an investigation to discover the responsible
student. Id. 131:5-8.
reviewing the security camera footage, Grussing-Neitzel and
her administrative team surmised the graffiti had to have
been written between 11:18 a.m. and 12:05 p.m. Id.
132:2-133:12. The security footage was also used to identify
students who were in the bathroom for an extended period of
time between 11:18 a.m. and 12:05 p.m. Id.
131:22-132:1. The film review led the investigation to focus
on two suspects, Plaintiff Minor Doe was one of those
suspects. Id. 136:6-19.
and another assistant principal interviewed Minor Doe the
following afternoon. Id. 144:11-23. Minor Doe
explained his presence in the bathroom on the security film
by saying he left class and went to the bathroom to address a
bloody nose. Id. 144:25-145:2. Minor Doe denied
going into the stall where the graffiti was written, claiming
that he stayed in front of the large mirror by the sinks the
entire time he was in the bathroom. Id.
145:18-147:3. Minor Doe then allowed Grussing-Neitzel to
search his backpack. Id. 147:4-17. Grussing-Neitzel
discovered that Minor Doe was carrying a whiteout pen and a
purple binder with “K.L.U.R.P.” written on it in
whiteout. Id. 147:4-17. Minor Doe explained that
“K.L.U.R.P.” was a “PlayStation
group” and that some of his female classmates in his
fourth period English class wrote it on his binder.
Id. 148:18-149:11. Grussing-Neitzel suspended Minor
Doe for five days based on the information from the security
footage and the items discovered in his backpack.
Id. 152:4-12. During Minor Doe's suspension, the
School's investigation continued. Id.
Principal Josie Johnson (“Johnson”) interviewed
all of the girls in Minor Doe's English class to
corroborate Minor Doe's story about
“K.L.U.R.P.” Id. 155:24-156:4. The girls
all denied writing anything on Minor Doe's binder.
Id. 156:7-10. Two or three girls reported seeing
Minor Doe write with whiteout on folders during class.
Johnson, and other School officials interviewed every student
observed entering the bathroom between 11:18 a.m. and 12:13
Id. 156:24-157:12. No student reported seeing
another student in the bathroom with a bloody nose.
Id. 231:2-9. Security footage also showed Minor Doe
casually walking to bathroom without holding his nose, which
was contrary to Minor Doe's statement that he had to
leave class in a hurry because he had a bloody nose.
Id. 233:4-16. The School concluded that Minor
Doe's story “fell apart.” Id.
Friday, November 18, the School determined that Minor Doe
wrote the racist graffiti in the bathroom and initiated
expulsion proceedings. Id. 159:9-160:11; 182:19-23;
April 2016, approximately seven months before the graffiti
incident, the School provided Minor Doe with an educational
plan pursuant to Section 504 of the Rehabilitation Act. Doe
Aff. Ex. 1 [Docket No. 37] (“Section 504 Plan”).
Minor Doe has been diagnosed with Attention Deficit
Hyperactivity Disorder (“ADHD”), Major Depressive
Disorder, and Post Traumatic Stress Disorder. Id.
His Section 504 Plan states that he lacks confidence in his
academic abilities and struggles with self-advocacy and
organization. Id. The Section 504 Plan accommodates
Minor Doe by: 1) scheduling his classes in a manner to ensure
continuity of teachers, 2) having a counselor check-in to
provide academic support, 3) providing additional time to
complete assignments, and 4) breaking down longer assignments
into smaller parts. Id.
Doe has not received services under the Individuals with
Disabilities Education Act (“IDEA”).
The November 21, 2016 Meeting
Minor Doe was a Section 504 student, the School District was
required to follow certain procedures prior to expulsion. On
November 21, 2016, the School convened a meeting of Minor
Doe's Section 504 Team to conduct a “Section 504
Manifestation Determination.” Emmons Decl. [Docket No.
20] Ex. 1. The purpose of the meeting was to determine
whether “Minor Doe's conduct was caused by Minor
Doe's Section 504 disabilities.” Emmons Decl.
Emmons (“Emmons”), the School District's
Director of Student Services, directed the meeting, which was
attended by Minor Doe's guardians and their attorney, the
School's Principal and Assistant Principal, Minor
Doe's math teacher, a School counselor, and the School
District's legal counsel. Emmons Decl. ¶ 5. The
School principal reviewed the disciplinary incident,
explaining that Minor Doe committed vandalism and violated
racial harassment policies by using whiteout to write racial
slurs in a boys' bathroom. Id. ¶ 7. The
group then reviewed and discussed Minor Doe's: 1) Section
504 Plan; 2) diagnostic report from a therapist working with