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Doe v. Osseo Area School District

United States District Court, D. Minnesota

October 31, 2017

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.,

          Andrea L. Jepsen, Esq., School Law Center, LLC, St. Paul, MN, on behalf of Plaintiffs.

          Peter A. Martin, Esq., Knutson, Flynn & Deans, PA, Mendota Heights, MN, on behalf of Defendant.




         On 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.


         A. Graffiti Discovered on November 9, 2016

         Around 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.

         Assistant 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. Id. 129:13-130:3.

         The 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; 217:25-218-3; 258:3-15.

         B. The School's Investigation

         Because 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.

         After 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.

         Grussing-Neitzel 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. 153:21-154:3.

         Assistant 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. Id. 156:11-13.

         Grussing-Neitzel, Johnson, and other School officials interviewed every student observed entering the bathroom between 11:18 a.m. and 12:13 p.m.[1] 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. 233:1-3.[2]

         On 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; 260:19-262:8.

         C. Minor Doe

         In 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.

         Minor Doe has not received services under the Individuals with Disabilities Education Act (“IDEA”).

         D. The November 21, 2016 Meeting

         Because 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. ¶ 4.

         Kate 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. ΒΆ 7. The group then reviewed and discussed Minor Doe's: 1) Section 504 Plan; 2) diagnostic report from a therapist working with him; ...

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