Case 1:11-cv-00245-WS-C Document 1 Filed 05/12/11 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

M.R., by and through his next friend,)

Mary Simmons; K.S., by and through

)

his next friend, Rhonda Stewart; D.M., )

by and through his next friend, Pinkie

)

Manassa; SA, by and through his

)

next friend, Michelle Manassa; lC.,

)

by and through his next friend, Alicia

)

Campbell; and E.M., by and through

)

his next friend, Michelle Manassa, on

)

behalf of themselves and all similarly

)

situated individuals,.

)

)

Plaintiffs,

)

)

v.

)

)

BOARD OF SCHOOL

)

COMMISSIONERS OF MOBILE

)

COUNTY; JEROME WOODS, in his

)

official capacity as Principal of Mattie T. )

Blount High School; KIRVEN LANG, in )

his official capacity as Assistant Principal )

of Mattie T. Blount High School; and

)

JASON D. LAFFITTE, in his official

)

capacity as Principal of C.L. Scarborough )

Middle School,

)

)

Defendants.

)

-- ------------------ - - - ------------------ )

CLASS ACTION CASE NO. CV-11-245

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COMPLAINT
INTRODUCTION 1. This is a federal civil rights action brought by six Mobile County Public School ("MCPS") students on behalf of a class of other MCPS students to challenge the violation oftheir Fourteenth Amendment right to receive notice and a hearing before being punished with long-term suspensions. The named Plaintiffs, who range in age from thirteen to eighteen, have been long-term suspended without proper notice or a hearing for minor infractions. One was long-term suspended for having his shirt untucked, another for not carrying his identification badge. When another student arrived late to lunch, he was expelled for the remainder of the semester and never given an opportunity to defend himself. Under the Due Process Clause ofthe Fourteenth Amendment to the United States Constitution, school administrators must provide students with notice and a fair hearing before punishing them with long-term suspensions. The Defendants have deprived the named Plaintiffs and many other students of these important constitutional rights. These violations impact not only the students, but also their families and communities. 2. Long-term suspensions are devastating for students and their families. Suspended students are forced to miss weeks or months of classroom instruction. While out of school, students often receive automatic zeros and are rarely given
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makeup work. As a result, they often fall behind their classmates and become frustrated with school. These consequences are magnified for students who are already struggling academically. Many students fail courses solely because of the number of missed class days, and some are forced to repeat a grade level as a result. Moreover, suspensions do nothing to address the underlying causes of misbehavior, which can range from academic issues and fear of embarrassment, to peer pressure, immaturity, disabilities, and the effects oftrauma.
3.· Long-term suspensions also have serious consequences for the entire community. Mobile faces a graduation rate crisis: less than 50 percent ofMCPS students graduate from high school. Research has found that that the more days a student is suspended, the less likely the student is to graduate from high school. Students who do not graduate from high school cost the community millions of dollars in lost economic activity, increased social costs, and crime. The MCPS system consistently suspends well over 10,000 students at least one time per year; thousands of these suspensions are for minor infractions, such as dress code violations and tardies. Yet in 2010, MCPS significantly reduced the due process protections that principals must follow before suspending students.
4. This complaint raises two procedural due process claims. First, it presents a facial challenge to the official disciplinary procedure approved by the Board of School Commissioners of Mobile County-aprocedure that allows
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principals to impose long-term suspensions without first holding hearings at which students and parents can challenge proposed suspensions. Second, it challenges the practices ofthe named Defendant Principals, who summarily suspend students until the end of the semester without following even the minimal procedures set forth in the Board's official policy.
5. The Defendants' actions have caused the Plaintiffs and countless other students to suffer academically and emotionally. Most, ifnot all, of the Plaintiffs will be forced to repeat classes or whole grades, and many will not graduate on time. They want to return to school but do not feel welcome there.
6. To address these harms and to stop them from occurring in the future, the Plaintiffs, on behalf of a class of similarly situated students, seek orders requiring an end to these unconstitutional practices, the immediate provision of notice and fair hearings for all affected students, and a change of the MCPS disciplinary procedure to ensure basic fairness to students facing lengthy suspensions from school and the resulting loss of educational opportunity.
PARTIES 7. PlaintiffM.R. is a fourteen-year-old student residing in Mobile, Alabama. During the 2010-2011 school year, he attended Mattie T. Blount High School as a ninth grader. In February 2011, he was suspended for the rest ofthe school year without proper notice or a hearing when he arrived late to lunch. M.R.
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brings this action by and through his adoptive mother and great-grandmother, Mary Simmons.
8. PlaintiffK.S. is an eighteen-year-old student residing in Mobile, Alabama. He enrolled for the 2010-2011 school year at Mattie T. Blount High School and attended school there until January 2011, when he was long-term suspended without proper notice or a hearing, apparently for being late to class. K.S. brings this action through his mother, Rhonda Stewart.
9. PlaintiffD;M. is an eighteen-year-old student with a disability residing in Mobile, Alabama. He enrolled for the 2010-2011 school year at Mattie T. Blount High School and attended school there until he was long-term suspended without due process in January 2011, apparently for being tardy. D.M. brings this action through his mother, Pinkie Manassa.
10. Plaintiff S.A. is a seventeen-year-old student residing in Mobile, Alabama. He began the 2010-2011 school year at Mattie T. Blount High School. After attending school for a few weeks, he was long"term suspended without due process for having his shirttail out. S.A. brings this action through his mother, Michelle Manassa.
II. Plaintiff J.C. is a seventeen-year-old student with a disability who lives in Mobile, Alabama. J.C. attended Mattie T. Blount High School for approximately three weeks in August 2010. At the end of August, he was
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summarily suspended for the rest ofthe semester for not having an official identification badge at school. lC. brings this action by and through his mother, Alicia Campbell.
12. PlaintiffE.S. is a thirteen-year-old student residing in Mobile, Alabama. He attended seventh grade at C.L. Scarborough Middle School until late March 2011, when he was summarily suspended for the rest of the year for skipping a class. B.S. brings this action through his mother, Michelle Manassa.
13. Defendant Board of School Commissioners of Mobile County (the "Board") is an elected body responsible for setting local education policy consistent with state and federal laws governing public education. The Board directs the Superintendent to develop procedures and administrative regulations to support the Board's policy decisions. The Board approved the MCPS Student Handbook and Code of Conduct ("the Handbook"), which sets forth the procedures for imposing suspensions of more than ten days.
14. Defendant Jerome Woods is the Principal of Mattie T. BlountHigh School, a school in the MCPS system. As the Principal of a Mobile County Public School, the Board has authorized him to investigate alleged student misconduct, to carry out the disciplinary procedures described in the MCPS Handbook, and to impose suspensions of up to one semester.
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15. In carrying out these duties and all actions discussed in the Complaint, Defendant Woods has been and is a state actor acting under color of state law. He is named as a defendant in his official capacity.
16. Defendant Kirven Lang is an Assistant Principal at Mattie T. Blount High School. As an Assistant Principal at Blount High School, he has the delegated authority to investigate alleged student misconduct, to carry out the disciplinary procedures described in the MCPS Handbook, and to impose suspensions of up to one semester.
17. In carrying outthese duties and all actions discussed in the Complaint, Defendant Lang is and has been a state actor acting under color of state law. He is named as a defendant in his official capacity.
18. Defendant Jason D. Laffitte is the Principal of C.L. Scarborough Middle School in Mobile, Alabama, a public school in the MCPS System. As the Principal of a Mobile County Public School, the Board of School Commissioners of Mobile County has authorized him to investigate alleged student misconduct, to carry out the disciplinary procedures described in the MCPS Handbook, and to impose suspensions of up to one semester.
19. In carrying out these duties and all actions discussed in the Complaint, Defendant Laffitte is and has been a state actor acting under color of state law. He is named as a defendant in his official capacity.
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JURISDICTION AND VENUE 20. The federal claims in this action arise under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331 and 1343(a). 21. Venue is proper in the Southern District of Alabama under 28 U.S.C. § 1391(b)(2) because a "substantial part of the events or omissions giving rise to the claim[s] occurred" within Mobile County, Alabama.
CLASS ACTION ALLEGATIONS 22. The named Plaintiffs bring this suit on their own behalf and on behalf of a class consisting of all current and former Mobile County Public Schools ("MCPS") students who have been or will be subject to disciplinary removals of more than ten days imposed by summary suspension without notice or hearing and/or in accordance with the "Specific Procedures for Fonnal Action" in the MCPS Student Handbook and Code of Conduct, as approved by the Board of School Commissioners of Mobile County in June 2010. 23. The proposed class is so numerous that joinder of all class members would be impractical. Over 60,000 students are currently enrolled in MCPS. All students are subject to the MCPS Handbook; any student could be charged with an infraction punishable by long-term suspension. The Handbook authorizes school administrators to impose long-term suspensions for a wide range of common,
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nonviolent offenses, including but not limited to repeat tardies, skipping class, and dress code violations. According to the most recently available data from the U.S. Department of Education, MCPS suspended more than 20 percent of students at least one time per year, and eight MCPS schools suspended more than 50 percent of students at least once per year. Hundreds, if not thousands, ofMCPS students receive long-term suspensions each year.
24. There are questions oflaw and fact common to all members of the proposed class, including, but not limited to, whether the failure to provide notice and a hearing to parents and students before placing students on long-term suspension violates the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.
25. Because the policies, practices, and customs challenged in this Complaint apply with equal force to the named Plaintiffs and other members of the proposed class, the claims of the named Plaintiffs are typical of the proposed class in general.
26. The named Plaintiffs will fairly and adequately represent the interests of the proposed class. They possess a strong personal interest in the subject matter ofthe lawsuit and are represented by experienced counsel with expertise in classaction civil-rights litigation in federal court. Counsel have the legal knowledge and
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resources to fairly and adequately represent the interests of all class members in this action.
27. The Defendants have acted and refused to act on grounds generally applicable to the proposed class. The MCPS disciplinary procedure policy applies to all students in the district. Accordingly, final injunctive and declaratory relief is appropriate to the class as a whole.
STATEMENT OF FACTS 28. Hundreds ofMCPS students -- if not more than a thousand -- receive long-term suspensions each year. 29. Students who receive a long-term suspension may be assigned to a disciplinary alternative school, but are barred from attending any other MCPS school during the suspension. 30. For most of2011, the alternative schools in MCPS have been filled to capacity and have not been accepting any more students. 31. According to MCPS representatives, as of approximately March 2011, approximately 50-60 students were on a waiting list for placement at alternative school. 32. The district does not provide educational services to most general education students who are on the waiting list for alternative school.
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· 33. The district also does not provide educational services to most general education students who are long-term suspended without assignment to alternative school.
34. None ofthe named Plaintiffs have received educational services' during their long-tenn suspensions.
35. While out of school, suspended MCPS students often receive automatic zeros and are rarely given makeup work. As a result, they often fall behind their classmates and become frustrated with school. These consequences are magnified for students who are already struggling academically.
36. Long-tenn suspended students may fail courses solely because of the number. of missed class days. Some are forced to repeat a grade level as a result.
37. The American Academy of Pediatrics has recognized that long-term suspension and expulsion may exacerbate academic deterioration, and when students are provided with no immediate educational alternative, may lead to student alienation, delinquency, crime, and substance abuse.
MCPS Disciplinary Policy 38. All administrators, teachers, parents, and students in the MCPS system are subject to the rules. and regulations contained in the MCPS Student Handbook and Code of Conduct (the "Handbook"). The Board of School
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Commissioners of Mobile County (the "Board") approved the current Handbook as official policy of the MCPS system in June 2010.
39. The Handbook defines a long-term suspension as an out-of-school suspension lasting from eleven days to the end of the semester. The Handbook authorizes long-term suspension for a range of non-violent offenses, including the second instance of class cutting, using an electronic device, leaving the classroom without permission, or "any other offense which the principal may deem reasonable to fall within this category of acts ofmisconduct."J The district also allows principals to long-term suspend children for repeat dress code violations
and tardies by treating such infractions as "act[s1of willful disobedience.,,2
40. The procedures that administrators must follow when imposing a long-term suspension are contained in a section ofthe Handbook entitled "Specific Procedures for Formal Action.,,3
41. Prior to June 20l0,MCPS's Handbook specified a clear procedure to provide due process before school administrators could order a long-term suspension.4 The procedure required that the student receive oral notice of a proposed suspension and that the parent/guardian receive advance written notice of a proposed suspension. It also required that the principal hold a due process
I Mobile County Public Schools Student Handbook and Code of Conduct (Approved June 2010), at 9-11. 2Id. 3Id. at 31-34. 4 See, e.g., Mobile County Public Schools Student Handbook and Code of Conduct (Approved June 2009); Mobile County Public Schools Student Handbook and Code of Conduct (Approved June 2004).
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hearing with the student and parent/guardian, at which the student could present evidence to defend against the charge and the parent could advocate for the child. The parent/guardian could also bring an attorney to the hearing. The principal could only impose a long-term suspension after that hearing.
42. In June 2010, the Board approved the current Handbook. This Handbook significantly reduced procedural protections for students facing longterm suspension.
43. The current Handbook does not require principals to,provide notice of a proposed suspension to the parent/guardian, and does not require a due process hearing attended by the student and parent before the imposition of a long-term suspenslOn.
44. Although the Handbook requires a "parent/guardian conference," the policy specifically allows principals to hold this meeting after the student has already served the long-term suspension. The policy also does not specify what must occur at the conference.
Violations of Procedural Due Process by Defendant Principals 45. Mattie T. Blount High School ("BHS") serves approximately 1,400 students. The most recently available data reported by MCPS to the U.S. Department of Education revealed that approximately 51 percent of BHS students were suspended at least one time during the school year. From 2009 to 2010, the
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number of suspensions at BHS increased overall, and particularly for students from low-income households.
46. As described below, the Defendant BHS Principals have a practice of imposing long-term suspensions without providing notice of a proposed suspension or convening a hearing with the parent and student before suspending the student.
47. This practice is not limited to BHS. Principals and assistant principals at a number of schools across the MCPS system have imposed long-term suspensions without providing notice of a proposed suspension or convening a hearing with the parent and student before the suspension is imposed.
PlaintiffM.R. 48. On August 9,2010, fourteen-year-old M.R. began ninth grade at Mattie T. Blount High School ("BHS"). Soon thereafter, Defendants Principal Jerome C.Woods and Assistant Principal Kirven Lang began suspending M.R. for minor rule violations, like wearing the wrong color shoes. 49. On November 16, 2010, Defendant Lang suspended M.R. for 20 days, through the end of the fall semester, for skipping a class. 50. In February 2011, M.R. arrived late for lunch because he was retrieving his jacket from a classroom. He had attended his prior class. 51. Defendant Woods accused him of skipping class and suspended him for the rest ofthe semester. Defendant Woods told M.R. not to come back to
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school for the rest of the school year and warned that, were he to return to campus, he would have him arrested for trespassing.
52. That day, Defendant Woods called M.R.'s mother, Mary Simmons, and told her that M.R. was suspended from school for the rest of the school year. He did not explain why. He also told Mrs. Simmons that all of the alternative schools were full, and that M.R. could not attend any other MCPS school. He did not try to schedule a parent conference with Mrs. Simmons or inform her ofM.R.'s procedural rights.
53. The next day and over the following week, Mrs. Simmons called Defendants Woods and Lang multiple times and left messages for them requesting a written notice of suspension. She did not receive a return call or a notice of suspensIOn.
54. A week or so after the suspension, Mrs. Simmons wrote a letter to the BHS principals requesting a document explaining why M.R. was put out of school. After they failed to respond to her letter, Mrs. Simmons continued to call the school and left messages for Defendants Woods and Lang. They never called her back.
55. Mrs. Simmons also contacted MCPS's Central Office and explained the circumstances ofher son's longcterm suspension. No one offered to address
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the lack of due process her son had received or informed her of any right to challenge the suspension.
56. Around the beginning of April201l, Mrs. Simmons began receiving automated telephone calls from BHS stating that M.R. had been truant from school. Mrs. Simmons wrote a letter to Defendant Woods asking for guidance on how she should proceed given that M.R. had been longcterm suspended. Defendant Woods never responded..
57. Before suspending M.R. for the rest of the semester, Defendant Woods did not provide M.R. an opportunity to defend himself.
58. Defendant Woods did not give M.R. an opportunity to present his account of the incident or explain his behavior.
59. DefendantWoods failed to give M.R. an opportunity to present written evidence or exhibits to support his case.
60. Defendant Woods did not give M.R. an opportunity to submit a list of names of witnesses for his defense, and accordingly did not try to obtain statements from all potential witnesses or consider those witness statements before rendering his decision.
61. Defendant Woods did not give Mrs. Simmons oral or written notice of a proposed suspension..
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62. Defendant Woods did not convene a due process hearing with Mrs. Simmons and M.R. or allow them an opportunity to obtain and be represented by counsel.
63. Defendants Woods did not give Mrs. Simmons an opportunity to advocate for her child before imposing suspension.
64; Before imposing the long-term suspension, Defendant Woods did not provide an explanation of the evidence he had to support the charges.
65. After imposing the suspension, Defendants Woods and Lang did not provide a written notice of suspension to M.R. or Mrs. Simmons.
66. Defendant Woods and Lang also did not inform M.R. or Mrs. Simmons ofM.R.'s procedural rights regarding the suspension.
67. When Defendant Woods suspendedM.R. until the end of the semester, he did not create any official record of his actions. The long-tenn suspension is not recorded in M.R.'s official school discipline history on the district's computer system or in M.R.' s MCPS cumulative file.
68. Mrs. Simmons has not received a written notice of suspension to this date.
69. While on long-term suspension, M.R. has received automatic zeros and not received any makeup work. He has received no educational services from MCPS during his long-tenn suspension.
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70. M.R., who has never previously been held back in school, will have to repeat the ninth grade.
7l. Once excited about school, M.R. has become depressed and disillusioned since being kicked out of school. He often feels like giving up on education and says he does not want to attend BHS because he feels the school administrators do not want him there. It is difficult for him to believe he was suspended from school for the remainder ofthe year.
n. Nevertheless, M.R. must re-enroll in the MCPS for the 2011-2012
school year. PlaintiffK;S.
73. K.S. was a student at Blount High School for the 2010-2011 school year.
74. On or about January 25, 2011, K.S. wag. suspended from school for the rest of the year, apparently for being late to class. K.S. was walking to class late. A few other students were walking in the hallway as well. Defendant Woods stopped K.S. and the other students, took their identification badges, and told them to leave and not to come back to BHS.
75. Defendant Woods did not give K.S. an opportunity to defend himself before suspending him.
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76. That day, a secretary from the school called K.S.'s mother, Rhonda Stewart, and told her that KS. was suspended for the rest of the school year. She did not explain why.
77. Ms. Stewart called the school repeatedly to talk to Defendants Woods and Lang about the long-term suspension, but they did not return her calls.
78. Before long-term suspending KS., Defendant Woods did not explain the evidence he had to support the suspension.
79. Defendant Woods did not give KS. an opportunity to present his account of the situation or explain his behavior.
80. Defendant Woods did not give K.S. an opportunity to present written evidence or exhibits to support his defense.
81. Defendant Woods did not give K.S. an opportunity to submit a list of names of witnesses to support him, and accordingly did not try to obtain statements from potential witnesses or consider such witness statements before rendering his decision.
82. Defendant Woods did not give Ms. Stewart oral or written notice of a proposed suspension.
83. Defendant Woods did not convene a due process hearing with Ms. Stewart and K.S. or allow them an opportunity to obtain and be represented by counsel.
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84. Defendant Woods did not provide an explanation of the evidence he had to support the charges.
85. Defendants Woods did not give Ms. Stewart an opportunity to advocate for her child before imposing suspension.
86. After imposing the suspension, Defendants Woods and Lang did not send Ms. Stewart a written notice of suspension.
87. Theyalso did not inform K S. or Ms. Stewart of M.R. ' s procedural rights regarding the suspension.
88. When Defendant Woods suspended K.S. until the end ofthe semester, he did not create any official record of his actions. KS.'s long-term suspension is not documented in KS.'s disciplinary records in the MCPS computer system or in his MCPS cumulative file.
89. KS. plans to re-enroll in the MCPS for the 2011-2012 school year. Plaintiff D.M.
90. D.M. has been a student at Blount High School for the last four years but has been repeatedly retained in the ninth grade. He is a student with a disability. A teacher told D.M.'s mother that students and even some teachers make fun ofD.M.
91. . During his four years at BHS, Defendant Woods has prevented D.M. from taking schoolwide standardized tests. Defendant Woods has suspended D.M.
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during the testing periods or called his mother and threatened to have D.M. arrested ifhe came to school during the tests.
92. Defendant Woods suspended D.M. multiple times for nonviolent and minor infractions during his years at BHS.
93. On several occasions, school employees have informed D.M.'s mother that Defendant Woods was treating D.M. unfairly. One employee has repeatedly advised D.M.'s mother that Defendant Woods wanted to expel D.M and added that it was wrong because he is not a "bad kid." Another confided that it was wrong how D.M. was being treated because his behavior had improved considerably. This person asked D.M.'s mother not to tell anyone of their conversation due to fear of retaliation.
94. D.M. enrolled at Blount for the 2010-11 school year.. In December 2010 or January 2011, D.M. went to the office for a tardy pass. D.M. received a pass, which indicated that he would receive a detention. Defendant Woods said that he would be suspended instead. D.M. expressed dismay about this decision, and Defendant Woods responded aggressively.
95. Shortly thereafter, Defendant Woods called D.M.'s mother and told her she needed to pick up D.M. right away. His mother asked why, butDefendant Woods refused to tell her.
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96. The next day, D.M.'s mother called and left a message for Defendant Woods seeking information about when she could bring D.M. back. Defendant Woods called back and said that D.M. could not return to school until May 2011.
97. Before long-term suspending D.M., Defendant Woods did not give D.M. an opportunity to defend himself.
98. Defendant Woods did not give D.M. an opportunity to present his account of the situation.
99. Before long-term suspending him, Defendant Woods did not give D.M. or his mother oral or written notice ofthe charges.
100. Before suspendingD.M., Defendant Woods did not give D.M.'s mother oral or written notice of the proposed suspension.
101. Defendant Woods did not convene a due process hearing with D.M. and his mother or allow them an opportunity to obtain and be represented by counsel.
102. Defendant Woods did not provide an explanation of the evidence he had to support the charges to D.M. or his mother.
103. Defendant Woods did not give D.M.an opportunity to present written evidence or exhibits to support his case.
104. Defendant Woods did not give D.M. an opportunity to submit a list of names of witnesses to support him, and accordingly did not try to obtain statements
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from potential witnesses or consider such witness statements before rendering his decision.
105. Defendants Woods did not give D.M.'s mother an opportunity to advocate for her child.
106. After imposing the suspension, Defendant Woods did not send D.M.'s mother a written notice of suspension.
107. Defendant Woods also did not inform D.M. or his mother of their procedural rights related to the suspension.
108. When Defendant Woods suspended D.M. until the end ofthe . semester, he did not create any official record ofhis actions.
109. This long-term suspension is not documented in D.M.'s cumulative file. Nor is it docmnented in D.M.'s disciplinary records in the MCPS computer system.
110. Defendant Woods did not arrange for any educational services for D.M. during the 2011 long-term suspension and did not have him placed in alternative school.
111. Unable to attend school, D.M. decided to look for work, but was told he needed documents from his school in order to obtain an identification card. D.M. went to BHS and asked for the paperwork needed to get an identification card. He was given a paper to sign, which he did.
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112. When D.M. returned from BHS, his mother looked at the paperwork and saw that he had actually signed documents to withdraw himself from school. D.M. did not know what he had signed.
113. D.M.'s mother was very upset. She called the school and left a message for Defendant Woods.
114. As of today's date, Defendant Woods has not returned the call.. 115. D.M. plans to re-enroll in the MCPS for the 2011-2012 school year.
PlaintiffS.A. 116. In August 2010, S.A. enrolled as a student at BHS. About a month after school began, S.A. left gym class and proceeded towards his next class. Before leaving the gym, S.A. changed into his school uniform, but forgot to tuck in his shirt. 117. Defendant Langnoticed S.A.'s untucked shirt and stopped him outside the gym. Rather than instructing S.A. to tuck in his shirt or asking why it was untucked, Defendant Lang ordered S.A. to the main office. 118. Once in the office, Defendant Lang told S.A. to go home and not to come back. 119. S.A. was confused. Because Defendant Lang failed to inform him of the length of his suspension, S.A. returned to school approximately a week later.
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Defendant Lang spotted him on campus, ordered him to leave school immediately, and threatened to have him arrested for trespassing ifhe returned.
120. In long-term suspending S.A.., Defendant Lang denied S.A. an opportunity to defend himself.
121. Defendant Lang failed to give S.A. an explanation of the evidence he had to support the charges.
122. Defendant Lang failed to give S.A. an opportunityto present his account ofthe incident or explain his behavior.
123. Defendant Lang did not provide oral or written notice of a proposed suspension to S.A.'s mother, Michelle Manassa;
124. Defendant Lang did not convene a due process hearing with S.A.and his mother, and did not give them the opportunity to obtain counsel to represent them.
125. Defendant Lang failed to give S.A. an opportunity to present written evidence or exhibits to support his case.
. 126. Defendant Lang failed to give S.A. an opportunity to submit the names of witnesses who could corroborate his account or support him, and accordingly did not try to obtain statements from the student's witnesses or consider their testimony in rendering his decision.
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127. Defendant Lang did not give S.A.'s mother the opportunity to advocate for her child before imposing the long-term suspension.
128. After imposing the suspension, Defendant Lang failed to provide a written notice of suspension to S.A. or his mother.
129. Defendant Lang .also did not explain to S.A. or his mother their procedural rights related to the suspension.
130. In fact, Defendant Lang did not officially document the long-term suspension. This suspension is not docwnented in S.A.'s cumulative file or on in MCPS's computer system.
131. About a week later, S.A.' s mother, Michelle Manassa, received a packet from BHS in the mail. The packet included a withdrawal slip, S.A.'s educational records, and information on the Drop Back In ("DBI") program, a local center for c!Topouts.
132. Ms. Manassa was shocked. She had never signed withdrawal papers for S.A. Under state law, S.A. is not old enough to withdraw himselffrom school.5
133. S.A. currently attends the DBI program, but he misses high school. The DBI program offers no formal instruction. Students spend the majority oftheir time on a computer. S.A., who struggles in several academic areas, no longer has . the access to teachers with specific subject expertise that he had at BHS.
5 See Code of Ala. § 16-28-3.1 (2011).
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134. S.A. plans to re-enroll in the MCPS for the 2011-2012 school year. PlaintiffJ. C.
135. In August 2010, J.C. began the school year at Blount High School. lC. is a student with disability. He did not understand much ofthe coursework in the classes in which he was placed but had been promoted year after year in spite of failing grades.
136. About three weeks into the school year, Defendant Woods noticed J.C. walking in the hallway without an identification ("ID") badge. Defendant Woods ordered J.C. to leave and not to come back to school.
137. J.C.'s mother, Ms. Alicia Campbell, had ordered him an ID badge, but it was not ready.
138. Defendant Woods denied J.C. an opportunity to defend himself before long-term suspending him.
139. Defendant Woods failed to give J.C. an opportunity to explain why he did not have his ID badge.
140. Defendant Woods did not provide Ms. Campbell with oral or written notice of the proposed suspension before imposing the long-term suspension.
141. Defendant Woods did not convene a due process hearing with lC. and Ms. Campbell, and did not give them an opportunity to obtain counsel to represent them in the proceedings.
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142. Defendant Woods failed to give J.C. an opportunity to present written evidence or exhibits to support his case before imposing the suspension.
143. Defendant Woods failed to give lC. an opportunity to provide a list of witnesses for his defense, and accordingly did not try to obtain statements from the J.C.'s witnesses or consider their testimony in rendering his decision.
144. Defendant Woods did not provide Ms. Campbell the opportunity to advocate for her child before imposing the suspension.
145. After imposing the long-term suspension, Defendant Woods did not provide lC. or Ms. Campbell with a written notice of suspension documenting J.C.'s long-term suspension or inform them of their procedural rights regarding the suspenslOn.
146. Defendant Woods did not officially document his long-term suspension of J.C. There is no record of the long-term suspension in J.C.'s MCPS cumulative file or in the J.C.'s disciplinary records in the MCPS computer system.
147. In fact, attendance records obtained from Blount High School stop with the 2009-2010 school year and show no attendance during the 2010-2011 year. It appears that J.C.'s attendance records were altered to make it appear that he had dropped out of school.
148. J.C. plans to re-enroll in the MCPS for the 2011-2012 school year. Plaintiff E.M
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149.. E.M. is a thirteen-year-old student at C.L. Scarborough Middle School. He is an intelligent child who often has difficulty with impulsivity, sitting still, and paying attention.
150. C.L. Scarborough Middle School serves approximately 500 students in the sixth, seventh, and eighth grades. According to the most recently available U.S. Department of Education data, 24 percent of all Scarborough Middle School students were suspended at least once during the school year.
151. In early April 2011, Defendant Principal Laffitte saw E.M. outside of his classroom and ordered him to the main office. Once at the office, Laffitte suspended E.M. for the rest of the semester without notice or a hearing.
152. Before long-term suspending E.M., Defendant Laffitte did not give him an opportunity to present a defense.
153. Defendant Laffitte did not give E.M. an opportunity to explain why he was outside his classroom or otherwise explain his behavior.
154. E.M.'s mother received no oral or written notice of a proposed suspension from the school.
155. Defendant Laffitte did not convene a due process hearingwith E.M. and his mother before imposing the long-term suspension, and did not give them the opportunity to obtain counsel to assist them with the proceedings.
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156. Defendant Laffitte did not provide E.M.'s mother the opportunity to advocate for her child before suspending him for the rest of the school year.
157. Defendant Laffitte did not give E.M and his mother an explanation of the evidence he had to support the suspension.
158. Defendant Laffitte did not give E.M. an opportunity to present written evidence or exhibits in his defense. Defendant Laffitte did not give E.M. an. opportunity to submit the names of witnesses who could support his defense, and accordingly did not try to obtain statements from the student's witnesses or consider their testimony in rendering his decision.
159. Defendant Laffitte did not provide a written notice of suspension to the student or his mother after deciding to suspend him, and did not inform them of their procedural rights regarding the suspension.
160. Defendant Laffitte never officially documented the long-term suspensIOn. E.M.'s cumulative file contains no documentation of it, and it is not documented in MCPS's computer system.
161. Defendants' actions have caused E.M. great harm. Because all of the district's alternative schools are full, E.M. has been out of school for over a month. E.M., who has never failed a class, will likely have to repeat the seventh grade, greatly increasing his chances of not graduating from school.
162. E.M. will re-enroll in MCPS for the 2011-2012 school year.
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CLAIMS FOR RELIEF COUNT ONE
Violations of the Fourteenth Amendment by Defendant Board of School Commissioners of Mobile County
By implementing a policy that authorizes school administrators to suspend students for longer than ten days without first providing proper notice and a hearing, the Board of School Commissioners of Mobile County has violated and continues to violate the Plaintiffs' rights to procedural due process under the Fourteenth Amendment to the United States Constitution.
COUNT TWO Violations of the Fourteenth Amendment by
Defendants Woods, Lang, and Laffitte By summarily punishing Plaintiffs with suspensions of longer than ten days without first providing them with proper notice and a hearing, Defendants Woods, Lang, and Laffitte have violated and continue to violate the Plaintiffs' rights to procedural due process under the Fourteenth Amendment to the United States Constitution.
PRAYER FOR RELIEF WHEREFORE, the Plaintiffs pray that this Honorable Court grant the following relief:
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1. Certify a class consisting of all current and former Mobile County Public Schools ("MCPS") students who have been or will be subject to disciplinary removals of more than ten days imposed by summary suspension without notice or hearing and/or in accordance with the "Specific Procedures for Formal Action" in the MCPS Student Handbook and Code of Conduct, as approved by the Board of School Commissioners of Mobile County on June 2010;
2. Declare that the disciplinary procedures set forth in the MCPS Student Handbook and Code of Conduct for suspensions of more than ten days violate the procedural due process guarantees ofthe Fourteenth Amendment to the United States Constitution;
3. Declare that the Defendants have violated the rights of the named Plaintiffs under the Fourteenth Amendment to the United States Constitution;
4. Enter a preliminary and permanent injunction requiring the Defendants, their agents, their employees, and all persons acting in concert with them to cease their unconstitutional practices and to remedy their violations of the Plaintiffs' rights under the United States Constitution;
5. Grant equitable relief requiring the Defendants to identify and address the violation of rights, and any attendant educational deprivations, that their actions have caused members of the Plaintiff Class;
6. Award the Plaintiffs reasonable costs and attorneys' fees; and
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7. Grant any other reliefthis Honorable Court may deem just and proper. Respectfully submitted, this the 12th day of May, 2011.
/s/ Marion D. Chartoff Marion D. Chartoff Code: CHARM4473 Iadine C. Johnson Code: JOHNJ7253 Southern Poverty Law Center 400 Washington Avenue Montgomery, Alabama 36104 Tel: (334) 956-8200 Fax: (334) 956-8481
33

 
 Case 1:11-cv-00245-WS-C Document 91 Filed 08/09/12 Page 1 of 41

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

__________________________________________

)

M.R., by and through next friend, Mary

)

Simmons; K.S.; D.M., by and through

)

next friend, Pinkie Manassa; S.A., by

)

and through next friend, Michelle

)

Manassa; J.C., by and through next friend,

)

Alicia Campbell; E.M. by and through

)

next friend, Michelle Manassa; C.H., by

)

and through next friend, Margaret Hobson;

)

and G.H., by and through next friend,

)

Emma Irby, on behalf of themselves and

)

all similarly situated individuals, )

)

Plaintiffs,

)

)

Case No. 11-cv-245-WS-C

v.

)

)

BOARD OF SCHOOL COMMISSIONERS

)

OF MOBILE COUNTY,

)

)

Defendant.

)

__________________________________________)

AMENDED COMPLAINT

I. INTRODUCTION

1. This is a federal civil rights action brought by eight Mobile County Public School System

(“MCPSS” or the “District”) students on behalf of a class of other MCPSS students to challenge

the violation of their Fourteenth Amendment right to receive notice and a hearing before being

punished with long-term suspensions. The named Plaintiffs, all students in the Mobile County

Public Schools, have been long-term suspended without proper notice or a hearing for minor

infractions. One was long-term suspended for having his shirt untucked, another for not carrying

Case 1:11-cv-00245-WS-C Document 91 Filed 08/09/12 Page 2 of 41
his identification badge. When another student arrived late to lunch, he was suspended for the remainder of the semester and never given an opportunity to defend himself. Under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, school administrators must provide students with notice and a fair hearing before punishing them with long-term suspensions. By creating a widespread custom of suspending students without notice and a hearing, the Defendant Board has deprived the named Plaintiffs and many other students of these important constitutional rights. These violations impact not only the students, but also their families and communities. 2. This complaint challenges the custom and practice of many school administrators in the MCPSS of long-term suspending students without first providing notice of proposed suspensions and hearings so that students and parents can challenge those suspensions, and the Defendant Board’s policy of turning a blind eye to that custom. This complaint also alleges that the supervision, training, and monitoring policies and practices the Board and its high-level officials have implemented have caused this to occur. 3. The Defendant Board’s actions have caused the Plaintiffs and countless other students to suffer academically and emotionally. After being suspended long-term, many students have been forced to repeat classes or whole grades, and many will not graduate on time. Many want to return to school but do not feel welcome there. 4. To address these harms and to stop them from occurring in the future, the Plaintiffs, on behalf of a class of similarly situated students, seek, among other things, an order requiring an end to this unconstitutional custom and practice, a declaration that the disciplinary procedures for suspensions of more than ten school days set forth in the 2010-2011 MCPSS Student Handbook and Code of Conduct violate the procedural due process guarantees of the Fourteenth
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Amendment to the United States Constitution, and an order that the Board revise to ensure the clarity of, monitor, and supervise compliance with the due process requirements of the Student Handbook and Code of Conduct. These changes to the MCPSS disciplinary procedure are needed to ensure basic fairness to students facing lengthy suspensions from school and the resulting loss of educational opportunity. II. JURISDICTION AND VENUE 5. The federal claims in this action arise under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331 and 1343(a). 6. Venue is proper in the Southern District of Alabama under 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to the claims occurred within Mobile County, Alabama. III. PARTIES
A. Plaintiffs 7. Plaintiff M.R. is a student residing in Alabama. M.R. plans to reenroll in Mobile County Public Schools later this fall. During the 2010-2011 school year, M.R. attended Mattie T. Blount High School as a ninth grader. In February 2011, M.R. was suspended for the rest of the school year without receiving notice and a conference. M.R. re-enrolled at Blount for the 20112012 school year. M.R. brings this action through M.R.’s adoptive mother and greatgrandmother, Mary Simmons. 8. Plaintiff C.H. is a student residing in Mobile, Alabama. C.H. enrolled at Murphy High School for the 2010-2011 and attended school there until being long-term suspended without receiving notice and a conference in April 2011, apparently for a uniform violation. Plaintiff C.H. re-enrolled at Murphy for the 2011-2012 school year. In April 2012, C.H. was long-term
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suspended again without notice or a conference for having too many tardy violations. C.H. brings this action through next friend Margaret Hobson. 9. Plaintiff G.H. is a student residing in Mobile, Alabama. In August 2010, G.H. enrolled at John L. Leflore High School as a ninth grader. Since then G.H. has been long-term suspended without receiving notice and a conference several times for non-violent infractions. G.H. brings this action through next friend Emma Irby. 10. Plaintiff K.S. is a student residing in Mobile, Alabama. K.S. enrolled at Mattie T. Blount High School for the 2010-2011 school year and attended school there until January 2011 when K.S. was long-term suspended without receiving notice and a conference, apparently for being late to class. K.S. re-enrolled at Blount for the 2011-2012 school year. 11. Plaintiff D.M. is a student with a disability residing in Mobile, Alabama. D.M. enrolled for the 2010-2011 school year at Mattie T. Blount High School and attended school there until being long-term suspended without receiving notice and a conference, apparently for being tardy. D.M. re-enrolled at Blount for the 2011-2012 school year. D.M. brings this action through next friend Pinkie Manassa. 12. Plaintiff S.A. is a student residing in Mobile, Alabama. S.A. began the 2010-2011 school year at Mattie T. Blount High School. After attending school for a few weeks, S.A. was longterm suspended for having a shirttail out. S.A. did not receive notice of proposed suspension or a conference S.A. re-enrolled at Blount for the 2011-2012 school year. S.A. brings this action through next friend Michelle Manassa. 13. Plaintiff J.C. is a student with a disability residing in Mobile, Alabama. J.C. attended Mattie T. Blount High School for approximately three weeks in August 2010. At the end of August, J.C. was long-term suspended for the rest of the semester for not having an official
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identification badge. J.C. brings this action by and through next friend Alicia Campbell. 14. Plaintiff E.M. is a student residing in Mobile, Alabama. E.M. enrolled for the 2010-2011 school year at C.L. Scarborough Middle School and attended there until late March 2011 when he was long-term suspended for the rest of the year for skipping a class. E.M. re-enrolled at Scarborough for the 2011-2012 school year. E.M. brings this action through next friend Michelle Manassa.
B. Defendant 15. Defendant Board of School Commissioners of Mobile County (the “Board”) is a corporation that was established in 1826 by an Act of the Alabama Legislature. It can sue and be sued. It is a state actor under 42 U.S.C. § 1983. In all of the acts described in this complaint, the Board and its employees have been “persons” acting under color of state law. 42 U.S.C. § 1983. IV. Statement of Facts
A. Overview 16. The most serious type of suspension available to principals in the Mobile County Public Schools is a long-term suspension, which is defined in district policy as a suspension ranging from 11 days to the end of the semester. The only more severe punishment available is expulsion from the school district. 17. The District’s electronic records show that at least 1,743 students were suspended longterm at least once in the academic years 2009-2010, 2010-2011, or 2011-2012. During the 20112012 school year alone, at least 427 students were suspended long-term at least once. 18. Lengthy suspensions have severe negative impacts on students. Suspensions decrease learning time in the classroom, often leave students without adult supervision, and frequently alienate students from school. In addition, on information and belief, long-term suspensions negatively impact the reputations of the students.
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19. Suspension is ineffective in changing behavior for many students, and appears to reinforce negative behaviors for students who feel uncomfortable in school. Nevertheless, school administrators repeatedly suspend MCPSS students for minor misconduct and non-violent behaviors. 20. Students who are suspended are more likely to be held back a grade, to drop out, or to become involved in delinquent activity.
B. Structure of the District 1. The Board of School Commissioners
21. The Board of School Commissioners of Mobile County was created by a special Act of the Alabama Legislature in 1826. The Board is a corporation that can sue and be sued. See Act No. 242, Ala. Legis. (1875). It has five elected members. 22. The Board of School Commissioners of Mobile County has a duty to “determine and establish a written educational policy for the board of education and its employees and . . . [to] prescribe rules and regulations for the conduct and management of the schools.” Ala. Code § 161-30 (1975). 23. The Board elects a Superintendent to supervise and manage the District. The Board has the duty to exercise control and supervision of the public school system of the county through the Superintendent and the Superintendent’s professional assistants. See Act No. 242, Ala. Legis. (1875); Ala. Code § 16-8-9 (1975). 24. The Board has a duty to “consult and advise through its executive officer and his professional assistants with school trustees, principals, teachers and interested citizens,” and has a duty to “seek in every way to promote the interest of the schools under its jurisdiction.” Ala. Code § 16-8-9 (1975). 25. The Board has a duty to “develop a written policy on student discipline and behavior and
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to broadly disseminate . . . [it] following its adoption.” Ala. Code § 16-28A-3 (1975). See also Ala. Code §§ 16-28-12, 16-1-24.1 (1975). 26. The Board must publish its discipline policy in a code of conduct that includes “procedures to be followed for acts requiring discipline.” Ala. Code § 16-1-24.1 (1975). 27. The Board has a duty to ensure that copies of the student discipline and behavior policy are “given to all teachers, staff, parents and students.” Ala. Code § 16-28A-3 (1975); see also Ala. Code § 16-28-12 (1975) (requiring Superintendent to provide at commencement of the school year a copy of the written policy on school behavior to each parent, guardian, or other person having control of a student). 28. The Board has final authority with regard to many personnel matters, including whether to enter and renew contracts with principals and whether to approve employee discipline and termination recommendations. 29. The Board has a duty to carry out all of the above-mentioned duties in a manner that does not violate federal law. See Act No. 242, Ala. Legis. (1875). 30. Children in Mobile County are entitled to a public education under the law of the state of Alabama, and therefore have a property interest in receiving that education.
2. The Superintendent 31. The Superintendent serves as an ex oficio member of the Board and provides general supervision to the District through the leadership team, a group of professional assistants who have responsibility for various areas of operations. 32. The leadership team is composed of the Deputy Superintendent, the Assistant Superintendents of Academic Affairs, and the Executive Directors of various divisions, such as Human Resources, Security, Federal Programs, and Student Support Services. 33. The Superintendent has delegated managerial and supervisory responsibility to the
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members of the leadership team. 34. The Executive Director of Student Support Services (“EDSSS”) serves directly under the Superintendent. His division has responsibility for student discipline, enrollment, withdrawal, school transfers, and attendance. 35. The EDSSS has policymaking authority. The EDSSS has the duty to monitor compliance with due process procedures. The EDSSS has supervisory authority over school administrators with regard to compliance with school discipline and due process policies, and has the authority to place disciplinary notices in their personnel files. 36. The EDSSS regularly fields requests for advice from principals with regard to disciplinary policy and procedure and discipline management and is considered the final authority on due process policy in the District. 37. The EDSSS is also responsible for overseeing the student disciplinary due process system and developing amendments to the District’s disciplinary and due process policies. The EDSSS oversees the production and distribution of the District’s Handbook, which contains the student discipline policies and procedures. 38. The EDSSS is ultimately responsible for discipline policies in the District. He reviews the policies, develops proposed changes, obtains MCPSS staff opinions about his proposed changes, and decides what proposed changes are sent to the Board. 39. The Superintendent and the Board defer to the EDSSS on matters of disciplinary policy and practice.
3. The Executive Director of Student Support Services is a policymaker for the School Board in the area of school discipline policy.
40. The Board has a duty to develop policies governing the procedures for imposition of suspensions. The Board has a duty to ensure that those policies comply with the requirements of
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federal and state law. The Board has delegated its policymaking authority in the area of student disciplinary procedure and practice to the Executive Director of Student Support Services. 41. The EDSSS convenes an Advisory Committee of school staff once a year to obtain input on any proposed changes to the Handbook. 42. The EDSSS selects the membership of the Advisory Committee, creates the agenda for the meeting, and facilitates the meeting. 43. The Committee is composed of a group of school administrators and other district personnel selected by the EDSSS. 44. The role of the Committee is to give input to the EDSSS with regard to proposed changes to the Student Handbook. 45. The EDSSS makes the final decision as to what changes to include in the Student Handbook. During the meeting, the attendees voice their opinions on the proposals presented by the EDSSS. They do not vote whether to approve the proposals. The EDSSS makes the final decision as to whether to include the proposed changes. Consensus of the Advisory Committee is not required for a change to be made. 46. After changes are made, the EDSSS sends the amended Student Handbook to the Superintendent, who forwards it to the Board of School Commissioners for approval. The Superintendent’s role is to formally present the amendments at the Board meeting. The Superintendent defers to the EDSSS on the contents of the Student Handbook and Code of Conduct. 47. The Board does not consider the contents of the Student Handbook and Code of Conduct to be Board policy. Accordingly, the Board routinely approves the Student Handbook and Code of Conduct as proposed. In at least the last three years, the Board has not made any alterations to
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the proposed changes to the Student Handbook and Code of Conduct. It defers to district administrators on the contents of the Student Handbook and Code of Conduct.
C. Procedures for Long-Term Suspension. 48. All administrators, teachers, parents, and students in the MCPSS are subject to the policies contained in the Handbook. 49. The Handbook sets forth policies governing, among many other things, the imposition of out-of-school suspensions on students in the MCPSS, including potential punishment ranges and procedures. 50. The Handbook defines a long-term suspension as an out-of-school suspension lasting from eleven days to the end of the semester. 51. The Handbook authorizes long-term suspension for a range of infractions. Many of these infractions are non-criminal and non-violent in nature. 52. The Handbook sets forth various infractions and groups them into categories. Group A covers “Disruptive Behaviors” such as excessive talking in class, dress code violations, and tardiness. Group B covers “Serious Disruptive Behaviors,” such as cutting class, use of electronic devices, using profane Language, and acts of willful disobedience. Group C, D, and E cover various types of misconduct that could constitute a criminal offense. 53. The Handbook specifically authorizes long-term suspensions for Group B, C, D, and E infractions. In addition, school administrators frequently impose long-term suspension for repeated dress code violations, tardies, and other Group A infractions. They do so by coding these repeat infractions as “act[s] of willful disobedience,” a category the Student Handbook does not define. 54. The procedures administrators must follow when imposing a long-term suspension are in a section of the Student Handbook entitled “Specific Procedures for Formal Action.”
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55. Prior to the 2010-2011 school year, MCPSS’s Handbook specified a procedure to provide due process before school administrators could order a long-term suspension. The procedure required that the student receive oral notice of a proposed suspension and that the parent/guardian receive advance written notice of a proposed suspension. It also required that the principal hold a due process hearing with the student and parent/guardian, at which the student could present evidence to defend against the charge and the parent could advocate for the child. The parent/guardian could also bring an attorney to the hearing. The principal could impose a long-term suspension only after that hearing, and had to provide written notice of the suspension decision thereafter. 56. The Handbook was revised significantly for the 2010-2011 school year. The 2010-2011 Handbook did not require principals to provide notice of a proposed suspension to the parent/guardian, and did not require the principal to provide a due process hearing attended by the student and parent before the imposition of a long-term suspension. 57. Although the 2010-2011 Handbook required a “parent/guardian conference,” the policy specifically allowed principals to hold this meeting after the student has already served the longterm suspension. The policy also reduced the prior explanation of what must occur at the conference. 58. On May 12, 2011, Plaintiffs filed the original Complaint in this suit, challenging the 2010-11 Handbook and the widespread practice in the District’s schools of suspending students without proper due process. Plaintiffs also challenged the practices of administrators at two schools who long-term suspended students without even following the challenged policy. 59. The Handbook was revised for the 2011-2012 school year to once again require a written notice of proposed suspension for long-term suspensions and a parent/guardian conference
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before imposition of a long-term suspension. The 2011-2012 Handbook requires written notice of proposed suspensions be provided to the parent/guardian within five days of the date of the student’s infraction and at least seven days before the scheduled due process hearing, that the notice inform the parent/guardian of the date and time of the due process hearing, and that the hearing be scheduled within five school days following issuance of the notice. 60. The 2012-2013 Student Handbook retains these provisions. 61. In the Mobile County Public Schools, from at least the 2009-2010 school year to the present, school administrators have frequently imposed long-term suspensions in violation of the procedural requirements of the relevant year’s Student Handbook. 62. Students from schools across the District report having been long-term suspended without any notice or a hearing, both before and after the 2010-2011 school year. 63. Administrators followed similar practices in imposing long-term suspensions from the 2010-2011 school year to the 2011-2012 school year.
D. The Handbook Does not Provide Adequate Notice of its Provisions. 64. The Student Handbook has become significantly longer since 2004. The 2004-2005 Student Handbook was 62 pages long and contained 13 different sections. The 2007-2008 Student Handbook was 73 pages long and contained 18 different sections. The 2010-2011 Student Handbook was 97 pages long and had 20 different sections. The 2011-2012 Student Handbook was 107 pages long and had 20 different sections. 65. The 2011-12 Handbook and 2012-13 Handbooks are written at a reading grade equivalency level of a college graduate or higher. 66. Letters purporting to provide notice of proposed and imposed suspensions are written at a reading grade equivalency level of a high school graduate or higher. 67. On information and belief, many parents do not receive a copy of the Student Handbook
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each year. 68. Many parents in Mobile Alabama do not have the formal education level at least equivalent to the reading level of the Student Handbook or notice of suspensions. 69. Parents of students in MCPSS are not adequately informed of the right to a due process hearing when their children are long-term suspended. 70. Parents of students in MCPSS are not adequately informed of the right to appeal a longterm suspension of their children. 71. The Board and EDSSS are also on notice that many parents and students are unaware that they can appeal suspensions. 72. The Handbook does not provide meaningful distinctions between infractions that are subject to long-term suspension and those that are not. 73. On information and belief, the Defendant Board has not adopted procedures for ensuring uniformity in the application of the categories of infractions to student conduct.
E. Custom in the District of Imposing Long-Term Suspensions without Notice and a Hearing.
74. In the Mobile County Public Schools, there is a persistent, widespread custom of school administrators suspending students for eleven or more consecutive school days without providing advance notice of the proposed suspension and a hearing for the student and parent before the long-term suspension is imposed. 75. Administrators frequently suspend students without providing the required notice of the proposed suspension and a parent/student conference. Electronic records provided by the District suggest that for 711 long-term suspensions imposed from February 2011 to March 2012, no notice of proposed suspension was created. 76. Administrators frequently suspend students without first providing a hearing where the
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parent and child can together review and challenge the evidence against the child, respond to the accusation, marshal evidence against it, and argue and present evidence against the imposition of a long-term suspension. Electronic records provided by the school district contain no evidence of a parent/student conference in relation to long-term suspensions imposed on 455 students from the 2009-10 school year to the present. 77. Violations of procedural due process are a systemic problem in Mobile. This practice has not been limited to one or two schools, but has occurred repeatedly at many schools throughout the District. 78. The District’s electronic records show that dozens of administrators from dozens of schools have imposed long-term suspensions for which the records suggest either no notice was provided, no hearing was held, or both. 79. Students have been suspended long-term for minor infractions, including minor dress code violations such as wearing the wrong colored belt, not having a belt, or wearing the wrong colored shoes. 80. Students have been told by school administrators not to return to school without a suspension being imposed. 81. Students that are subjected to long-term suspensions are deprived of a significant liberty interest as their reputation in their community is negatively impacted. 82. Long-term suspensions from school can seriously damage a student’s standing with their fellow pupils and teachers, as well as interfere with later opportunities for higher education and employment. 83. Given such a significant, and potentially negative, impact on student’s liberty interest the minimal requirements of the Due Process Clause must be satisfied.
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84. The Defendant Board did not provide the minimal procedural due process protections to students facing long-term suspensions. 85. The Board has had ample opportunity to remedy the procedural due process failings of the MCPSS disciplinary system, but has not affirmatively acted to prevent or cure such deprivations.
1. The Board of School Commissioners of Mobile County and its highlevel officials have notice of this unconstitutional custom and have acted with deliberate indifference to the probability of future harm to students as a result of it.
86. The Board of School Commissioners, the Superintendent, and the Executive Director of Student Support Services have repeatedly been made aware of this custom of suspending students without due process. They have acted with deliberate indifference in the face of this information. 87. In 2010, one or more high-level MCPSS officials learned of a principal’s imposition of an off-campus, unauthorized punishment on a student during the school day, without the knowledge of the student’s parent. The MCPSS official launched an internal investigation into the incident.1 88. The principal had been engaging in a practice of informally long-term suspending students, without providing a proposed notice of suspension and a parent-student due process conference, and sending the suspended students to the police station to wash cars, bathrooms, and do assignments during the school day. 89. When the investigation was complete, the Superintendent and the Human Resources department were advised of the results of the internal investigation. The Human Resources
1 The names of the relevant individuals are omitted in the interest of confidentiality of personnel information.
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department informed the principal’s direct supervisor and asked for a punishment recommendation, which the supervisor provided. 90. The Board substantially diminished the punishment. 91. The principal was allowed to remain as principal of the school. 92. In the time since this incident, the principal has not been subjected to an increased level of supervision or monitoring or required to receive any training targeted to prevent another violation of students’ due process or other rights. The Board did not order any increased supervision or training to prevent another occurrence. 93. As a result, this principal has continued to long-term suspend students without due process and has sent additional students to the police station during those suspensions. 94. These allegations were reported to the Director of Human Resources and the Security Department by one or more employees during the 2011-2012 school year. 95. The principal remained at the helm of the school throughout the 2011-2012 school year. 96. The principal will remain at the school in the coming year.
2. Filing of the M.R. Lawsuit 97. The Board, Superintendent, and other senior leadership were made aware of the practice of long-term suspension without due process at Blount High School and Scarborough Middle School through the filing of the lawsuit in M.R., et al. v. Board of School Commissioners of Mobile County, et al., on May 12, 2011. 98. The complaint filed in this lawsuit notified the Board not only that the District’s official due process policy, contained in the 2010-2011 Handbook, was being challenged, but also alleged that school administrators at Blount High School and Scarborough Middle School had been engaging in a practice of imposing long-term suspensions on students without providing even the reduced due process required by the District’s challenged policy.
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99. After learning of the lawsuit, neither the Assistant Superintendents who conduct the formal evaluation of the principals, nor the Executive Director of Student Support Services, who supervises the principals with regard to due process and discipline, investigated the allegations. 100. On information and belief, they were not told to investigate the allegations of the lawsuit or the schools’ general compliance with disciplinary due process procedures. 101. These high-level administrators are unaware of anyone else in the District conducting such an investigation or monitoring compliance with due process in these schools. 102. Neither the Board nor anyone else ordered the EDSSS and Assistant Superintendents to increase supervision of the named administrators in response to the lawsuit. 103. Nor did the Board or anyone else require that the EDSSS and Assistant Superintendents provide any extra training in response to the lawsuit. The EDSSS and Assistant Superintendents did not provide extra training or require the administrators to obtain any extra training. 104. By not taking any steps to investigate, confirm or address the allegations against the principals named in the complaint, the Board, Superintendent, and Executive Director of Student Support Services acted with deliberate indifference to a significant risk of harm to additional students at Blount High School and Scarborough Middle School. 105. In late 2011 and in May of 2012, Superintendent Martha Peek and Board President Levon Manzie were informed of additional ongoing due process violations at another middle school. 106. In December 2011, a high level district official met with then-Deputy Superintendent Peek to discuss the many complaints she had received from parents about a middle school principal. 107. The official had received complaints every year for several years alleging that the principal had suspended students without advance notice of a suspension conference, a
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conference, and a notice of suspension. 108. The official contacted the Deputy Superintendent because the principal’s contract was up for renewal the following spring and the official thought that the contract should not be renewed. 109. At that time, Ms. Peek told the official that she had spoken with Board President Manzie about the matter and that Manzie had told Peek that he and another Board member would not support termination, and that it would not be supported by the Board. 110. As a result, the Deputy Superintendent proceeded with the contract renewal despite the concerns about the principal’s compliance with due process. 111. In the spring of 2011, the official and Peek, who had been appointed Superintendent in the interim, received additional complaints against the same principal regarding at least two other students who were long-term suspended without notice and a hearing. 112. The official again approached Superintendent Peek, this time with a recommendation to terminate the principal. 113. Superintendent Peek again stated that she had talked to Board President Manzie about the matter and that Manzie said that the Board would not support the termination. 114. Superintendent Peek did not formally propose termination of the principal to the Board. 115. The Principal who violated the students’ due process rights will remain a principal at the same school in the coming year. A new supervisor has been assigned to that school. 116. The Board’s actions have shown that they will not hold principals accountable for violations of the due process rights of students. 117. On information and belief, at least one Board member also is on notice of the custom of long-term suspending students without notice or a conference, due to requests for assistance received from members of the community.
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3. The Executive Director of Student Support Services fails to correct school administrators who violate due process procedures in the imposition of long-term suspensions, despite extensive knowledge of these violations and a duty to correct them.
118. Executive Director of Student Support Services Terrence Mixon is aware that school administrators frequently violate MCPSS due process procedures in the imposition of suspensions. 119. Mr. Mixon has acted with deliberate indifference in the face of this knowledge. 120. Mr. Mixon receives calls, visits, and information from parents whose children have been suspended from school long-term. 121. Mr. Mixon has frequent conferences with parents who are unsatisfied with the handling of their child’s suspension. 122. As a result of these interactions, on information and belief, Mr. Mixon has repeatedly heard allegations that principals do not follow the District’s due process procedures for longterm suspensions. 123. Mr. Mixon has repeatedly received information indicating that a school administrator did not provide a notice of proposed conference or a conference at which the parent and student could challenge the proposed suspension. 124. Mr. Mixon has repeatedly received information that school administrators exclude students with behavior problems from school in violation of district policy. 125. In spite of this knowledge, he has not increased training of school administrators to address these problems. 126. Mr. Mixon also has not monitored to determine the scope of the violations at particular schools, although monitoring is his duty. 127. Mr. Mixon also consults frequently with principals via email and telephone about
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disciplinary matters and revocations of student transfers. 128. As a result of these interactions, Mr. Mixon knows that principals frequently do not follow or understand the District’s due process procedures for suspensions. 129. Mr. Mixon shows excessive and unwarranted deference to principals when they exclude students with behavior issues, regardless of their compliance with district policy. He has repeatedly supported principals’ decisions to exclude students with behavior issues from schools when the principals had violated district policy. In one instance, Mr. Mixon refused to order a principal to take back a student who the principal had withdrawn from school during a long-term suspension without the student’s or parent’s permission. 130. In the face of this knowledge, Mr. Mixon has followed a policy or practice of providing extremely minimal training to school administrators in the requirements of due process and the District’s due process procedures. 131. Prior to Mr. Mixon’s appointment, the Executive Director of Student Support Services provided training to school administrators regarding due process procedures, and emphasized the importance of complying with these procedures in those trainings. 132. Mr. Mixon has changed the training policy and practice of the District. Administrators now receive little or no training on compliance with due process procedures. At least some school administrators have received no training in due process procedures in the last three years. 133. At the annual principals’ meeting at the beginning of each school year, Mr. Mixon has provided approximately 20 minutes of training per school year to the principals on the entire Handbook, of which the due process procedures comprise one of 20 discrete parts. 134. As a result of Mr. Mixon’s inadequate training of principals and assistant principals, principals and assistant principals misunderstand the District’s due process procedures.
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135. Although the procedure requires Assistant Principals to investigate and present recommendations for suspension and the Principal to serve as the hearing officer at the school level, for at least some schools the assistant principals both investigate and serve as hearing officer for suspensions. 136. Since his appointment in 2009, Mr. Mixon has been responsible for supervising compliance with the District’s discipline policies. 137. In his role as the EDSSS, Mr. Mixon is solely responsible for supervising student discipline and its application per the Code of Conduct. However, Mr. Mixon does not monitor principals’ compliance with the Code of Conduct. Mr. Mixon also does not track suspension rates or discipline incidents. 138. Mr. Mixon does not attempt to determine whether principals are in compliance with the due process policy. When changes are made to the discipline procedures in the Code of Conduct, Mr. Mixon does not make an effort to ensure that the new changes are being adopted by principals in the District. 139. Mr. Mixon has not instructed his staff to report violations of the District’s due process policies to him, or to take any action when they learn of such violations. 140. Mr. Mixon does not provide regular training throughout the school year on school discipline due process procedures. 141. Mr. Mixon has become aware of principals who routinely violate the Student Handbook’s due process procedures. However, Mr. Mixon does not discipline principals for violations of the Code of Conduct or impose any penalty. 142. Mr. Mixon also receives complaints from parents about other administrators, principals, and the District’s discipline procedures. Mr. Mixon frequently meets with or calls individuals to
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resolve complaints. Despite the numerous complaints regarding district employees and their noncompliance with discipline procedures, Mr. Mixon has never formally investigated a principal’s or school’s discipline procedures. Further, Mr. Mixon has never formally investigated any complaints about due process or complaints about discipline procedures brought to him by parents. 143. Mr. Mixon has had ample opportunity to remedy the procedural failings within the District, but has not done so or attempted to do so.
4. Through its Superintendents, the Board has adopted a policy and practice of not supervising due process compliance.
144. The Board has delegated policymaking authority in the area of supervision to the Superintendent and his/her professional assistants. 145. In 2008, Dr. Roy L. Nichols became the Superintendent of the Mobile County Public Schools. 146. Dr. Nichols instituted a policy of allowing principals to run their schools with little or no guidance from their supervisors. On information and belief, Dr. Nichols repeatedly told Board members not to play an active role in supervision of the schools. 147. Dr. Nichols made the Board aware of his policy and that his leadership team would play a supportive rather than a corrective role in supervising principals. 148. On information and belief, Deputy Superintendent Peek communicated Dr. Nichols’s policy repeatedly to members of the leadership team. The Board knew or should have known that this policy would result in less supervision of compliance with due process policies, but did not direct Dr. Nichols otherwise. 149. As Superintendent, Ms. Peek has carried on the same policy.
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5. As the Executive Director of Student Support Services, Mr. Mixon has implemented a policy of reducing due process protections for students in the District.
150. When the EDSSS retired in 2009, Dr. Nichols hired Mr. Mixon to be the new EDSSS. Prior to that appointment, Mr. Mixon had been the principal of Williamson High School in Mobile for nine years. 151. During the first six months of his appointment, Mr. Mixon began developing significant proposed changes to the Student Handbook. Mr. Mixon had received input from school administrators that the District’s due process policy was too onerous and developed a revision of the due process procedures to address the principals’ concern. 152. Mr. Mixon proposed to remove the requirement that school administrators provide a written notice of proposed suspension to parents before the suspension conference. The written notice of proposed suspension advised the parent of the allegations against their child and, set a date for the suspension conference. 153. In December of 2009, Mr. Mixon convened an Advisory Committee of principals and other MCPSS staff to provide feedback on proposed changes to the Handbook. 154. After the meeting, Mr. Mixon revised the due process procedures in the Handbook to remove the Proposed Notice of Suspension requirement, to state that a conference with the student and the parent could be held either on the day of the suspension or on the day the student returned from the suspension, and to eliminate detailed discussion of what must occur at the conference. 155. Mr. Mixon sent the revision to the Superintendent, who forwarded it to the Board for adoption. In June 2010, the Board adopted the Handbook as revised by Mr. Mixon. 156. The June 2010 Student Handbook did not require principals to provide notice of a proposed suspension to the parent/guardian, and did not require a due process hearing attended
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by the student and parent before the imposition of a long-term suspension. 157. The proposal Mr. Mixon sent to the Board was internally inconsistent and confusing. Neither the Superintendent nor the Board corrected the errors. Because the Board deferred to Mr. Mixon, their review was extremely cursory.
6. Plaintiffs were injured by virtue of the unconstitutional acts pursuant to the custom in the District, and that custom was the moving force behind the unconstitutional acts.
158. The Board and EDSSS Mixon have acted with deliberate indifference to the custom among school administrators of frequently suspending students for more than ten consecutive school days without notice of the proposed suspension and a parent-student conference. 159. Due to the policy and practice of failing to train administrators on the contents of the District’s due process policy and the law of procedural due process, some administrators frequently violate the policy and law and do not understand that they are doing so. 160. Due to the policy and practice of failing to monitor and supervise administrators’ compliance with the District’s procedural due process policies and due process law, repeated violations are uncorrected. This communicates to administrators who knowingly violate the policies that there will be no consequences for such violations, or even that such violations are encouraged. 161. The Board’s decision to protect principals who violate procedural due process emboldens these principals to continue violating the due process rights of students. 162. These policies, practices, failures to perform duties, and decisions of the Board and the EDSSS have created a custom of widespread noncompliance with the Board-adopted due process policies and procedures, and the violation of students’ due process rights. 163. This custom was the moving force behind the unconstitutional acts of the school administrators who suspended the Plaintiffs without notice and a conference. Further, students
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do not have an adequate remedy sufficient to cure the procedural deprivation of their constitutional rights. 164. Many students who are long-term suspended do not receive an equal and adequate education while suspended.
F. Plaintiffs Have Been Suspended Long-Term without Notice and a Hearing. 1. Plaintiff M.R.
165. In August 2010, M.R. began ninth grade at Mattie T. Blount High School. In February 2011, M.R. arrived late for lunch because M.R. was retrieving M.R.’s jacket from a classroom. M.R. had attended M.R.’s prior class. 166. Principal Jerome Woods accused M.R. of skipping class and suspended M.R. for the rest of the semester. Mr. Woods told M.R. not to come back to school for the rest of the school year and warned that, were M.R. to return to campus, Mr. Woods would have M.R. arrested for trespassing. 167. That day, Mr. Woods called M.R.’s mother, Mary Simmons, and told her that M.R. was suspended from school for the rest of the school year. Mr. Woods did not explain why M.R. was suspended. Mr. Woods also told Mrs. Simmons that all the alternative schools were full, and that M.R. could not attend any other MCPSS school. Mr. Woods did not try and schedule a parentstudent conference with Mrs. Simmons or inform her of her right to appeal. 168. The next day and over the following week, Mrs. Simmons called Mr. Woods and Assistant Principal Kirven Lang several times and left messages for them requesting a written notice of M.R.’s suspension. She did not receive a phone call or a notice of suspension. 169. Mrs. Simmons also contacted MCPSS’ Central Office and explained the circumstances of M.R.’s long-term suspension. No one offered to address the lack of due process M.R. had received or informed her of any right to challenge the suspension.
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170. A few months after M.R. was long-term suspended, Mrs. Simmons began receiving calls from Blount saying M.R. was absent from school. Mrs. Simmons wrote a letter to Mr. Woods asking for guidance on how she should proceed given that M.R. had been long-term suspended. Mr. Woods did not respond. 171. Before suspending M.R. for the rest of the year, Mr. Woods did not provide M.R. an opportunity to tell his side of the story. 172. Mr. Woods failed to provide Mrs. Simmons with a notice of the proposed suspension or notice of suspension even after multiple requests. 173. Mr. Woods did not convene a conference with M.R. and Mrs. Simmons where they could challenge the proposed suspension. 174. Mr. Woods did not tell Mrs. Simmons that she could appeal this suspension. Mrs. Simmons did not know she could appeal the suspension. 175. When Mr. Woods suspended M.R. until the end of the school year, he did not create any official record of his actions. The long-term suspension is not recorded in M.R.’s official school discipline history on the district’s computer system or in M.R.’s MCPSS cumulative file. 176. Mrs. Simmons has not received a written notice of suspension to this date. 177. While on long-term suspension, M.R. received automatic zeros and did not received any makeup work. M.R. received no educational services from MCPSS during the long-term suspension. 178. M.R., who before this had never been held back in school, had to repeat the ninth grade. 179. M.R. plans to return to MCPSS this fall for the 2012-2013 school year.
2. Plaintiff C.H. 180. Plaintiff C.H. was a student at Murphy High School for the 2010-2011 school year. 181. In April of 2011, a teacher sent C.H. to the office because C.H. was wearing a shirt with a
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small polo logo. 182. Assistant Principal Patricia Hunter suspended C.H. until the end of the school year. 183. Ms. Hunter did not provide C.H. with a notice of proposed suspension. 184. Ms. Hunter failed to convene a parent-student conference to where C.H. and a parent could challenge the proposed suspension. 185. Ms. Hunter did not give C.H. the opportunity to explain why C.H. was wearing the shirt or share any mitigating circumstances. 186. Ms. Hunter did not inform C.H. of the right to appeal the suspension. C.H. was unaware of any right to appeal. 187. A few days after the suspension, C.H. still had not received any written notice of the suspension. C.H. went to Murphy with her mother to find out if she was allowed to return to school. They found Ms. Hunter in the cafeteria. 188. Ms. Hunter still would not allow C.H. to return. Again, Ms. Hunter failed to provide any notice of the suspension. 189. About a week later, C.H. went with C.H.’s father to the MCPSS Central Office to try to enroll in an alternative school. 190. At the Central Office, C.H. and C.H.’s father met with Kina Greene, who works for the Division of Student Support Services. Ms. Greene informed them that it was too late in the semester to enroll in alternative school. 191. Ms. Greene did not inform C.H. or C.H.’s father of their right to appeal the suspension. 192. As C.H. was unable to attend any alternative schools, C.H. received no educational services during this long-term suspension. 193. C.H. returned to Murphy High School for the 2011-2012 school year.
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194. In April of 2012, Ms. Hunter told C.H. that C.H. had too many tardies. 195. Ms. Hunter then suspended C.H. until the end of the year. 196. Ms. Hunter did not give C.H. a written notice of proposed suspension. 197. Ms. Hunter did not convene a parent conference where C.H. and C.H.’s mother could bring evidence of the reason for the tardies and argue for a reduced penalty. 198. Ms. Hunter did not inform C.H. of her right to appeal this suspension. 199. C.H. did not receive any written notice pertaining to this long-term suspension. 200. C.H. received no educational services during this long-term suspension. 201. C.H. plans to return to Murphy High School for the 2012-2013 school year.
3. Plaintiff G.H. 202. In August 2010, Plaintiff G.H. started ninth grade at John L. Leflore High School. 203. In February 2011, Assistant Principal Beanner Phillips called G.H. to the office. Ms. Phillips told G.H. that she wanted G.H. out of her school. She suspended G.H. for the rest of the semester. The only piece of paper G.H. received was a pass to walk home. 204. G.H. does not understand the reason for the suspension. 205. Ms. Phillips did not provide G.H. written notice of the proposed suspension. 206. Ms. Phillips did not convene a conference with G.H. and G.H.’s mother, Ms. Emma Irby, where they could challenge the suspension. 207. Ms. Phillips did not provide G.H. an opportunity to challenge the suspension. 208. Ms. Phillips did not inform G.H. or Ms. Irby that she could appeal this suspension. They were unaware that they could. 209. G.H. received no educational services during this suspension. G.H.’s electronic records state he was suspended for a total of 112 days. 210. G.H. returned to Leflore in August 2011.
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211. In September 2011, G.H. was accused of stealing a watch. One of G.H.’s classmates sold the watch to G.H. and then accused G.H. of stealing it. 212. G.H. heard this classmate tell teachers three different stories about how G.H. gained possession of the watch. 213. Assistant Principal Phillips did not provide G.H. an opportunity to explain what had happened. 214. Ms. Phillips did not provide G.H. with a notice of proposed suspension. 215. Ms. Phillips did not convene a conference with G.H. and Ms. Irby where they could challenge the suspension. 216. Ms. Phillips did not inform G.H. or G.H.’s mother that she could appeal the suspension. 217. In January 2012, G.H. returned to regular day classes at Leflore. 218. In February 2012, Principal Alvin Dailey suspended G.H. for wearing cargo pants. G.H. is indigent, and the cargo pants were G.H.’s only clean clothes. 219. Mr. Dailey suspended G.H. for the remainder of the semester. 220. Mr. Dailey gave G.H. a single sheet of paper. The paper said “Discipline Report” at the top and was signed at the bottom. 221. The report described a single occurrence—according to the report, G.H. was using profanity. The report did not state anything about cargo pants. 222. The report did not state that G.H. was being recommended for a long-term suspension. 223. The report did not list a date or time for a conference with G.H. and G.H.’s mother. 224. The report did not inform G.H. or G.H.’s mother of their right to challenge the suspension. 225. Mr. Dailey did not convene a conference with Ms. Irby and G.H where they could
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challenge the suspension. 226. After this suspension, G.H. was enrolled in the Twilight Program. 227. About a week after starting Twilight, G.H. was long-term suspended from Twilight. 228. The Twilight teacher told G.H. not to come back or he would be arrested. 229. G.H. is unsure of the reason for the suspension from Twilight. G.H. believes it was because G.H. was wearing earphones. 230. G.H. was not given any written notice of this suspension. 231. School administrators did not give Ms. Irby and G.H. the opportunity for a conference where they could challenge the suspension. 232. School administrators failed to provide G.H. the opportunity to hear the charges or explain. 233. Additionally, school administrators did not create an official record of this suspension. This suspension is not listed in G.H.’s official school discipline history. 234. G.H. spent the remainder of spring semester without any educational services. 235. G.H. plans to reenroll in the MCPSS for the 2012-2013 school year.
4. Plaintiff K.S. 236. Plaintiff K.S. enrolled as a student at Blount High School for the 2010-2011 school year. 237. In January of 2011, K.S. was suspended from school for the rest of the year, apparently for being late to class. K.S. was walking to class late after a fire drill. At least one other student was walking in the hallway at the same time. Principal Jerome Woods stopped K.S. and the other student, took their identification badges, and told them to leave and not come back to Blount. 238. Mr. Woods did not give K.S. an opportunity to explain before imposing the suspension. 239. A secretary from Blount called K.S.’s mother, Rhonda Stewart, and told her K.S. was
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suspended for the rest of the year. The secretary did not explain why. 240. Ms. Stewart called the school repeatedly to talk to Mr. Woods or Mr. Lang about the long-term suspension, but they did not return her calls. 241. Mr. Woods did not give K.S. or K.S.’s mother a notice of proposed suspension. 242. Mr. Woods did not convene a conference with K.S. and K.S.’s mother where they could challenge the suspension. 243. Mr. Woods did not inform K.S. or K.S.’s mother of their ability to challenge the suspension. 244. When Mr. Woods suspended K.S. until the end of the semester, he did not create an official record of his actions. This suspension is not listed in K.S.’s official school discipline history or cumulative file. 245. K.S. attended Blount for the 2011-2012 school year. 246. K.S. plans to re-enroll in the MCPSS for the 2012-2013 school year.
5. Plaintiff D.M. 247. Plaintiff D.M. has been a student at Mattie T. Blount High School for the past several years, but has been repeatedly retained in the ninth grade. D.M. is a student with a disability. 248. Mr. Woods short-term suspended D.M. multiple times for nonviolent and minor infractions during his years at Blount. 249. On several occasions, school employees have informed D.M.’s mother that Mr. Woods was treating D.M. unfairly. One employee repeatedly advised D.M.’s mother that Mr. Woods wanted to expel D.M. and added that it was wrong because D.M. is not a “bad kid.” Another confided that it was wrong how D.M. was being treated because D.M.’s behavior improved considerably. This person asked D.M.’s mother not to tell anyone of their conversation due to fear of retaliation.
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250. D.M. enrolled at Blount for the 2010-2011 school year. In January 2011, D.M. went to the office for a tardy pass. D.M. received a pass, which indicated that he would receive a detention. Mr. Woods said that he would be suspended instead. D.M. expressed dismay about this decision, and Mr. Woods responded aggressively. 251. Mr. Woods suspended D.M. for the rest of the semester. 252. Mr. Woods did not give D.M. an opportunity to explain. 253. Mr. Woods did not provide a proposed notice of suspension. 254. Mr. Woods did not convene a conference with D.M. and D.M.’s mother where they could challenge the suspension. 255. Mr. Woods did not create an official record of this suspension. This suspension is not listed in D.M.’s official school discipline history or cumulative file. 256. D.M. did not receive any educational services during this suspension. 257. Unable to attend school, D.M. decided to look for work, but was told D.M. needed documents from his school in order to obtain an identification card. D.M. went to Blount and asked for the paperwork needed to get an identification card. D.M. was given a paper to sign, and did so. 258. When D.M. returned home, D.M.’s mother looked at the paperwork and saw that D.M. had actually signed documents to withdraw from school. D.M. did not know what the papers were. 259. D.M.’s mother was very upset. She called the school and eventually spoke to Principal Woods. She told Woods they should not have allowed D.M. to withdraw and that D.M. did not know of the withdrawal. Mr. Woods said there was nothing he could do. 260. D.M. plans to re-enroll in MCPSS for the 2012-2013 school year.
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6. Plaintiff S.A. 261. In August 2010, S.A. enrolled as a student at Blount High School. About a month after school began, S.A. left gym class and proceeded towards the next class. Before leaving the gym, S.A. changed into the school uniform, but forgot to tuck in S.A.’s shirt. 262. Principal Jerome Woods noticed S.A.’s untucked shirt. Rather than instructing S.A. to tuck in his shirt or asking why it was untucked, Woods ordered S.A. to the main office. 263. Once in the office, Mr. Woods gave S.A. a stack of papers that included a withdrawal slip. 264. S.A. was confused. Neither S.A. nor S.A.’s mother, Michelle Manassa, had asked that S.A. be withdrawn. 265. Mr. Woods told S.A. to go home and never come back or he would be trespassing. When S.A. came home, S.A. told his mother S.A. had been kicked out of school. She was shocked. Soon thereafter S.A.’s mother went to Blount to inquire why S.A. was no longer allowed to attend school. 266. S.A.’s mother spoke with Mr. Woods, who informed her that he did not think school was the place for S.A. Michelle Manassa, S.A.’s mother, asked Woods if S.A. could return to Blount. Woods said no. 267. Mr. Woods failed to provide S.A. an opportunity to explain. 268. Mr. Woods did not provide a notice of proposed long-term suspension. 269. Woods did not convene a conference with S.A. and S.A.’s mother, Michelle Manassa, where they could challenge the suspension. 270. S.A. returned to Blount for the 2011-2012 school year. 271. S.A. plans to re-enroll in the MCPSS for the 2012-2013 school year.
7. Plaintiff J.C.
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272. In August 2010, J.C. enrolled at Blount High School for the 2010-2011 school year. J.C. is a student with a disability. 273. About three weeks into the school year, Principal Jerome Woods noticed J.C. walking in the hallway without an identification (“ID”) badge. Mr. Woods ordered J.C. to leave and not to come back to school. 274. J.C.’s mother, Ms. Alicia Campbell, had ordered an ID badge, but it was not ready. 275. Mr. Woods did not provide J.C. an opportunity to defend himself before long-term suspending him. 276. Mr. Woods did not provide a written notice of J.C.’s suspension. 277. Mr. Woods did not convene a conference with J.C. and J.C.’s mother where they could challenge the suspension. 278. When Mr. Woods suspended J.C. until the end of the semester, he did not create an official record of his actions. This suspension is not listed in J.C.’s official school discipline history or cumulative file. 279. J.C. plans to reenroll in the MCPSS for the 2012-2012 school year.
8. Plaintiff E.M. 280. In August 2010, E.M. enrolled as a student at C.L. Scarborough Middle School. 281. In early April 2011, shortly after E.M.’s thirteenth birthday, Principal Jason Laffitte longterm suspended E.M until the end of the school year. 282. Mr. Laffitte did not give E.M. an opportunity to explain. 283. Mr. Laffitte failed to provide advance notice of E.M.’s suspension. 284. Mr. Laffitte did not convene a conference with E.M. and E.M.’s mother, Michelle Manassa where they could challenge the suspension. 285. When Mr. Laffitte suspended E.M. until the end of the semester, he failed to create an
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official record of his actions. This suspension is not listed in E.M.’s official discipline history or
MCPSS cumulative file.
286. E.M. returned to Scarborough for the 2011-2012 school year. E.M. was suspended
several times and was threatened with long-term suspension at least once.
287. E.M. plans to re-enroll in the MCPSS for the 2012-2013 school year.
V. CLASS ALLEGATIONS 288. Plaintiffs bring this action on behalf of themselves and, under Rule 23 of the Federal
Rules of Civil Procedure, as representatives of a Class defined as follows:
All current and future MCPSS students who have been or may be suspended for more than ten consecutive school days (1) without being provided a written notice of proposed suspension (“notice”), (2) without being provided a due process hearing attended by both the student and his/her parent/guardian (“hearing”), or (3) without being provided both notice and hearing. 289. Members of the Class are so numerous that joinder is impracticable. The Class is easily
identifiable from information and records in possession of the Defendant Board, and the Class
will only increase over time.
290. Plaintiffs and members of the Class have common questions of law and fact because the
Defendant Board has acted on grounds generally applicable to the entire class. Common
questions include:
a. Whether the disciplinary procedures set forth in the MCPSS Student Handbook and Code of Conduct, as approved by the Board in June 2010, violate the Fourteenth Amendment; and
b. Whether minimum due process as guaranteed by the Fourteenth Amendment requires school administrators to provide a written notice of proposed suspension to the parent/guardian and hold a due process hearing attended by the student and parent/guardian before imposing a long-term suspension.
291. Plaintiffs’ claims are typical of the claims of the members of the Class. Plaintiffs and all
members of the Class were damaged by the same wrongful conduct by the Defendant Board, i.e.,
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they were suspended for more than ten consecutive school days without proper notice and hearing as a result of the custom of violating due process requirements in MCPSS and the Defendant Board’s policies and actions. 292. Plaintiffs will fairly and adequately protect and represent the interests of the Class. Plaintiffs’ interests are coincident with, and not antagonistic to, those of the Class. 293. Plaintiffs are represented by counsel who are experienced and competent in the prosecution of class action and have particular experience with class action in the educational reform and child advocacy context. VI. CLAIMS FOR RELIEF
Count One Violation of the Fourteenth Amendment Right to Due Process Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set forth herein. By the Board and its policymakers’ deliberate indifference to the existence of a widespread custom among the school administrators of the District of imposing long-term suspensions of more than ten consecutive school days without notice and hearing, the Board of School Commissioners of Mobile County has violated and continues to violate the Plaintiffs' rights to procedural due process under the Fourteenth Amendment to the United States Constitution. Plaintiffs seek relief pursuant to 42 U.S.C. § 1983 to redress the deprivation, under color of state law, of rights secured by the United States Constitution.
Count Two Violation of the Fourteenth Amendment Right to Due Process
Through Failure to Train and Supervise
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Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set forth herein.
By the Board and its policymakers’ implementation of a policy of failing to adequately train and supervise school administrators on compliance with due process in imposing long-term suspensions of more than ten consecutive days, in spite of their knowledge of frequent noncompliance with the requirements of due process, the Board of School Commissioners of Mobile County has violated and continues to violate the Plaintiffs' rights to procedural due process under the Fourteenth Amendment to the United States Constitution.
By allowing school administrators who have repeatedly violated students’ procedural due process rights to remain in their positions, failing to require additional training or supervision, and failing to take adequate corrective action, the Defendant Board and its policymakers have implemented a policy of allowing school administrators to violate procedural due process requirements.
Plaintiffs seek relief pursuant to 42 U.S.C. § 1983 to redress the deprivation, under color of state law, of rights secured by the United States Constitution.
Count Three Violation of the Fourteenth Amendment Right to Due Process Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set forth herein. The 2010-2011 Student Handbook and Code of Conduct authorized the imposition of suspensions of more than ten consecutive school days without notice and hearing. This policy of the Board violated the Plaintiffs’ Fourteenth Amendment rights to due process. Plaintiffs are at risk of future injury from this policy if the policy is reinstated. Plaintiffs seek relief pursuant to 42 U.S.C. § 1983 to redress the deprivation, under color of
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Case 1:11-cv-00245-WS-C Document 91 Filed 08/09/12 Page 38 of 41
state law, of rights secured by the United States Constitution. VII. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray that this Honorable Court grant the following relief: 1. Certify a class consisting of all current and future MCPSS students who have been or may be suspended for more than ten consecutive school days (1) without being provided a written notice of proposed suspension (“notice”), (2) without being provided a due process hearing attended by both the student and his/her parent/guardian (“hearing”), or (3) without being provided both notice and hearing; 2. Declare that the disciplinary procedures for suspensions of more than ten days (“longterm suspensions”) set forth in the MCPSS Student Handbook and Code of Conduct, as approved by the Board of School Commissioners of Mobile County in June 2010, violate the procedural due process guarantees of the Fourteenth Amendment to the United States Constitution; 3. Grant equitable relief requiring the Defendant Board, its agents, its employees, and all persons acting in concert with it to, before the imposition of a long-term suspension, (1) provide written notice to the student and his/her parent/guardian, and (2) hold a hearing with the student and parent/guardian at which the student and parent/guardian may present the student’s side of the story, including evidence in support of the student’s case, and challenge the evidence against the student and the proposed punishment; 4. Grant equitable relief requiring the Defendant Board to re-draft the due process procedures in the Student Handbook and Code of Conduct to use plain language that is readily understandable at an appropriate grade-level equivalence; 5. Grant equitable relief requiring the Defendant Board to, at the beginning of each academic year and promptly upon a student’s enrollment in any school in the MCPSS at any other time, provide a copy of the Student Handbook and Code of Conduct to all
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Case 1:11-cv-00245-WS-C Document 91 Filed 08/09/12 Page 39 of 41
parents/guardians of students in the MCPSS by mail or other feasible means that ensure the parent’s or guardian’s receipt; 6. Grant equitable relief requiring the Defendant Board to ensure that the Executive Director of MCPSS Student Support Services monitors and supervises compliance with the due process requirements in the Student Handbook and Code of Conduct; 7. Grant equitable relief requiring the Defendant Board to require school administrators to accurately record all disciplinary incidents, including long-term suspensions, and to monitor disciplinary records for compliance with such requirement; 8. Grant equitable relief requiring the Defendant Board to expunge long-term suspensions imposed in violation of due process as guaranteed by the Fourteenth Amendment from the records of the named Plaintiffs; 9. Award Plaintiffs reasonable costs and attorneys’ fees; and 10. Grant any other relief this Honorable Court may deem just and proper.
Respectfully submitted this 9th day of August, 2012. /s/ Sumit Mallick Joseph J. Mueller (admitted pro hac vice) joseph.mueller@wilmerhale.com Jason H. Liss (admitted pro hac vice) jason.liss@wilmerhale.com Yin Zhou (admitted pro hac vice) yin.zhou@wilmerhale.com Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston, MA 02109 Tel: (617) 526-6000 Fax: (617) 526-5000 Sumit Mallick (admitted pro hac vice) sumit.mallick@wilmerhale.com
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Levi Giovanetto (admitted pro hac vice) levi.giovanetto@wilmerhale.com Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 Tel: (202) 663-3000 Fax: (202) 663-6000 Marion D. Chartoff (CHARM4473) Marion.chartoff@splcenter.org Jadine C. Johnson (JOHNJ7253) jadine.johnson@splcenter.org Southern Poverty Law Center 400 Washington Ave. Montgomery, AL 36104 Tel: (334) 956-8200 Fax: (334) 956-8481 Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that on this, the 9th day of August, 2012, I electronically filed the foregoing Amended Complaint with the Clerk of Court using the CM/ECF system which will send notification of such filing to all attorneys of record.

/s/

Sumit Mallick

Sumit Mallick

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 Case 1:11-cv-00245-WS-C Document 137-1 Filed 06/28/13 Page 1 of 13
EXHIBIT A

Case 1:11-cv-00245-WS-C Document 137-1 Filed 06/28/13 Page 2 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

M.R., etaL,

Plaintiffs,

v.

Case No. 11-cv-245-WS-C

BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY,

Defendant.

SETTLEMENT AGREEMENT
The Board ofSchool Commissioners of Mobile County ("Board", ''School System" or ''MCPS") and the Plaintiffs M.R., E.M., ItS., S.A., D.M., G.H., C.B., Mary Sinu1ions, Pinkie Manf!ssa, Michelle Manassa, Emma Irby, and Margaret Hobson ("Plaintiffs'') (collectively, ''the Parties'') enter into this Settlement Agreement ("Agreement").
In an effort to provide relief to the Plaintiffs and to decrease out-of~school suspensions in the Mobile County Public School System, Plaintiffs and the Defendant Board have ageeed to resolve this Matter on the terms set forth below.

DEFINITIONS

For the purposes of this Agreement, the following definitions should applythroughout:

L

"Alternatives to suspension'' refers to School System responses to student behavior that

that do not involve removal of students from schooL

2.

"Central Office'' refers to the Mobile County Public Schools Central Office currently

located at 1 Magnum Pass, Mobile, Alabama 36618~

3.

"Code of Conduct" or ~'CodeH refers to the Mobile County Public Sphools Student

Handbook.& Code of Conduct and to the policies described therein, including policies related to
discipline violations and due proc~ss protections. Where reference is made to specific

provisions, such provisions are contained in the version ofthe Code of Conduct 'approved June

28,2012 or as revised during the term of the Agreement.

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Case 1:11-cv-00245-WS-C Document 137-1 Filed 06/28/13 Page 3 of 13

4.

"ALSDE consultant" refers to an appropriately~experienced employee at the Alabama

State Department of Education who will workwith the School System as first described in

paragraph 49 below. It is understood that the identity of the ALSDE consultant may change

from time to time for reasons beyond thy control of the Parties.

5.

''Due process hearing" refers to the conference held when a long,.term suspension is

proposed, as described in Section V{D)(5) ofthe Code ofConduct.

6.

''Electronic Dashboard" refers to the School Systetn-wide computer-b~sed data system

being developed to monitor and track the School System's acade1nic and discipline data.

7.

''EEOP~' refers to the Evening Educational Options Progran1, at1 accelerated c01nputer~

based learning and career development program facilitated by the Mqbile County Public School

System and the Mobile Area Ed1.1cation Foundation.

8.

·''Highdisparity rate groups" refers to groups of students iu the School System who may

be identified as having experienced higher suspension rates than othet groups.

9.

''Long..:term suspension'' refers to an out..;of-school suspension that lasts 11 or more

school days, as described. in Section V(D)(2) ofthe Code of Conduct.

10.

''Out-of-school suspension" refers to a shorter long-term suspension during which the

suspended student is not permitted to attend school, as described in Section V(D)(l) ofthe Code

of Conduct.

1L ''Parent" refers to the biological parent, adoptive parent, a student's legal guardian, or primary caretaker.

12. ''Short-tenn suspension" refers to an out-:-of-school suspension that lasts between 1 and 10 school days, as described in Section V(D)(2) of the Code of Conduct.

13.

"Student S~pport Services'~ refers to the MCPS Division that, among other things,

handles discipline; alten+ative plac~ent, and student records.

PURPOSE AND INTENT
14~ Tq attempt to reducethe number of suspension$ imposed in the School System while maintai11ing safe, or:det:ly~ and effective 'schpols.

DUE PROCESS HEARING FOR LONG-TERM SUSPENSIONS
15. Subject to the provisions of the Agreement, due process hearings will be conducted in conformance with the procedures described in Section V(D)(5)-(6) of the Code of Conduct. To the extent the provisions ofthis Agreetnent conflict with the requirements of the Code of

Case 1:11-cv-00245-WS-C Document 137-1 Filed 06/28/13 Page 4 of 13
Conduct, the Agreetnent will controL The School Syste1n will not modify the due proce~s hearing requiretnents in the Code of Conduct without good faith discussion with Plaintiffs' counsel to ensure that proposed n1odifications are appropriate in light of the purposes and aspirational goals of the Agreement.
16. When a prin.cipalrecotnmends along-term suspensionfor a student, that student's parent will be provided wtitten notice of the proposed long-tern1 suspension, and adue process hearing will be cond1lcted;
17. The purpose of the d:ue process hearing is for the principal to finish gathering
information and to allow the student and the parent to provide additional infonnation and ask questionS;
18. As describeci in Section V(D)(5) ofthe Code of Conduct, atthe due process heating, the student will he given an opportunity to explain his other involvement, defend his or her action, present a witness list, and written evidence and/ot exhibits to support his or her case. The parent
will be given an opportuhity to cotnment on the incident.
19. As descnbed in Section V(D)(5) of the Code of Conduct, the student and patent may exercise the right to have legal counsel at the due process hearing.
20. In lieu ofexercising the right to have legal counsel attend the dueprocess hearing as described in Section V(D)(5) of the Code ofConduct, the student and parents may request that the school counselor attend the due process hearing on a possible long term suspension to act as a liason for parents and students; as long as reasonable notice is provided in advance.
21. Ih lieu ofexercising the right to have legal counsel attend the due process hearing as described inSection V(D)(7) of the Code of Conduct,the student and parents may request that a non-lawyer advocate attend the appeals hearing, as long as reasonable notice is provided in advance, including the name ofthe non,.lawyer advocate.
22. The decision whether to impose a long,.term suspension will nqt be made until after the due process hearing~ As described in Section V(D)(6) of the Code ofConduct, a student will be presun1ed iru1ocent until after the due process heEJ;ring is h<;?ld1 23, Once a decision to long~tero1 suspend ct studentis tnade, the parent will be provided "\Vtitten notice ofthe suspension.
24. A student Will ilot be sent home pending the due process hearing unless that student pr~sertts, a threat to the safety of other students, t~achets~ and/or staff, or ifthe student is
significantly impairing the ability of the teachers to teach and the other students to lea:rn.

Case 1:11-cv-00245-WS-C Document 137-1 Filed 06/28/13 Page 5 of 13
25. When a student is not allowed to attend school pending the due process hearing, and then receives a lohg-terrn suspension, that time spent out of school prior to the due process hearing will count.towards the final suspe11sion days.
MAKE..UP WORK 26. Whe;n a $tudent is not allowed to attend school pendb,1g the due process hearing, whenever possible that student will receive homework assignments and make-up wprk. 27. When a student is suspended, the school will make its best efforts to provide make~up
work during the suspension. The student will be allowed to make up work missed ·when he or sh~ returns to school.
APPEAL HEARINGS 28. As described in Section V(D)(7) of the Code of Conduct, a parent has the right to appeal the principal's decision to long~tenn suspend a student. 29. Suspension appeal forms will be available at every school, and will be reasonably clear anq easy to understand. Ifa parent needs assistance in writing and filing appeals, that assistance will be tnade available, subject to economic realities and feasibility.
SUSPENSION POLICIES AND PROCEDURES 30. The School System's discipline policies and procedures should be simple, clear, and eas.y to understand. These pqlicies and proced1.1res include the Student Handbook & Code of Conduct, Student Support Services Handbook, Notice of Proposed Suspension and Notice of Suspension. 3L The School System's discipline policies should be consistentifthey are contained in
more than one place, inch.idihg for example the Student Support Setvic~s Handbook and the Student Handbook &Code of Conduct.
32. The Code of Conduct willbe simplified, preferably made shorter, a:nd printed inJarget
font.
33. The Code ofConduct will he made available in Spanish and Vietnatnese for parents and . students with limited English proficiency to the extent practicable.
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34. Eletnentary schools in the School System will continue to have grad.e-appropriate Codes of Conduct. Examples of the elementary school Codes of Conduct will be provided by June 30, 2013. 35. The School System will include in the Code ofConductan e~mail address, phone. number and fax nutnber~ to give parents a way to notify Student Support Services if there are probletns with the disciplinary process, and to have questions answered. 36. The School Systetn has reviewed the substance and format of the Baltimore City Schools Code of Conduct and will ilnplement something similar in format. The School System will provide definitions and detailed examples of code offenses, in a grid format shnilar to that used bythe Baltimore City Schools. 37~ The School System will consider changing the definition of long-term suspension from 11 or more school days to 5 or more school days.
ALTERNATIVES TO SUSPENSION
38. Suspension will be reserved for serious infractions. Alternatives to suspension will be used when reasonably possible. 39; For some infractions; suspension will not be an option. Student~ will not be suspended for offe11ses categorized as Al :. "Excessive talking in the classromn"; A4: ''Being hpproperly dressed or out of uniform"; an(i A9: "Possessing ofnuisance items tiS de:fine4 by the principaL'' 40~ Code offei1$e A-12, which is ''[aJny other offense which the principal1nay deem
reasonable to fall within this category ofmisco1,1duct", will be removed from the Code. 41. School System policy materials will stress that a short-termsuspensioh for children under age eight is alast reso1i. Children under a.ge eight will not be lons;··:termsuspended for A or
B offenses. The School System will Lnake every reasonable: effort to avoid giving short.;ttehrt
suspensions to students under age eight 42. The School System, through Student Support Services and PK-12 assistant
superintendents, will identify schools whh high suspension rates aild high disparity tate woups
and evaluate whether a plan should be impleinented for those schools to improve disciplinary .
compliance and decrease suspensions~ 43. The School System will consider ideas, strategies and specific measures outlined in the National School Boards Association April~ 2013 Policy Guide "Addressing the Out-of-School
Suspension Crisis,'.
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Case 1:11-cv-00245-WS-C Document 137-1 Filed 06/28/13 Page 7 of 13
STUDENT, PARENT AND COMMUNITY OUTREACH AND ENGAGEMENT
44. At the beginning ofeach school yeat, each school. will hold an informational session for parer1ts and students at to explain the discipline policies and procedures. 45. The School Systen1 will createa working group to develop a mertu of research-based and restorative alternatives to suspension. The group will include parents, students and
comtnunity members, along with administrators, teachers, counselors, and School System officials. 46. The School System will solicit and consider creative ideas from ad1ninistrators, principals, teachers, parents, and students on how to reduce suspensions and improve discipline.
TRAINING AND SUPERVISION
47. The School System will institute a progr(l.m of fonnal training for aci;tninjstrators and Central Office staff on short and longterm suspensions. TI1e program will cover suspensions, due process, alternatives to suspension, improving school climate and classroom management. The program will be incorporated within the Professional teaming Unit P:rogratn. TI1e program will require signing in, and proof ofparticipation and understanding. Administrators will receive professional education credit for their participation in the program. 48. At the beginning ofthe settlement period (subject to the instructor's availability), the
Sqhool System will bring in a professional development instructor at its reasonable expense. This training will last one to two days. The in.structor will provide training on behavi{}r interventfo.11
and supports and will assist the School System with how to achieve the aspirational goal of
reducing student suspension rates in a way that works best for the School System. Those who receive this targeted training will use this information to train other administtators·and staff
throughout the School System.
49. The School System will consult with the appropriate person (the "ALSDE consultant") at the Alabama State Department of Education (ALSDE) to help implement the measures agreed-upon and to assist the School System with theaspirational goal ofreducing long~term suspensions. The ALSDE consultant will collaborate with the School Systetn on developing a professional development program, data analysis arid monitoring and implementing changes to policies and procedures. (The School System will,ifreasonably possible byJuneJO, 2013, attempt to facilitate contactbetween Plaintiffs' counsel and the above-described person from the Alabama Department of Education,)

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50. To help the School Syste1n meet the aspirational goals} the School System will compile three years of discipline data about suspensions, including school by school, and evaluate it carefully. 51. One cotnponent of the evaluation of School System principals. \vithin standards 7 and 8 of"Lead Alabama" will be con1pliance with the School Syste1n's discipline and suspension policies. 52. The School Syste~n willincrease and improve tnonitoring of the suspension policies and procedure~. The Executive Director of Student Support Services will review allJong-term suspensions and forward data on suspensions to the PK-12 assistant superintendents. In addition, all su,sp~nsions will be included on the School Systein1s ''ElectrQnicDashboard", and gJ;aphic reports documenting suspensions by offense and. length and other relevant features will be generated a11d reviewed. This will enable policy :makers, administrators and teacher& as well as
the public to know how often students are being suspended.
53. The Superintendent or her administrator designee will review any proposed suspensions
qver 20 school df!ys, and his or her approval of arty such long..tenn suspension will be required.
Ifthe Superintendent selects a designee, that designee will either be an Assistant Superintendent, the Deputy Superintendent, or the Executive Director of StudentSupport Services.
lVIONITORING
54. The parties have agreed on ''aspirational goals" and '~settlement tenns" to help monitor successful implementation of this Agreetnent. The identification of aspirational goals and settlement terms does not relieve the Parties frmn other obligations identified in this Agreement. 55~ Monitoring will be done of both "aspirational goals;' and ''settlementtenns.'; Aspirational goals are goals which the Sch,ool System desires to attain and will try diligently to attain. Attaining the aspirational goals is not, however, a requirement of the settletnent, nor is faihtre to attain art aspirational goal a breach ofthe Agr~ement Aspitational. goals will be evaluated at the e11d of years 1, 2 and3 ofthe settlement.If orte, or more aspirational goals have
not peen n1et, the School System~ in conjunction with the ALSDE consultant, will analyze why
they have notbeen met, and if appropriate, what reasonable measures. should be taken to attain
them. Th~ School System will thet1 imple.mel)t those measures within a reasonable period of
tin:te. The aspirational goals ate:
1, Reduce totalp:umber ofout..;of-schbol suspensions. 2. Reduce humber of students who receive two ot more out-of-school suspensions, ih
one academic year.
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3. Reduce total nmnber ofsuspensions over 20 days for A and B offenses. 4. Reduce average nutnber of academic days lost to suspensions. 5. A void concentrating susp~nsions within any group or demographic, including
111ales, minorities, or students with disabilities. Plaintiffs acknowledge that they have
1nade no allegation of this.
56. At the end of the first sqhool year, the Parties will confer and discuss whether it would
be productive and helpful to assign target percentf:lges to some qr all of the reductions above. Any agreed~upon percentage targets would be for internal and reference use only. 57. Settlement tenus are the criteria that the parties will use to determine if the School System has .tnet the terms ofthe Agreement. Failure to attain a settlement term will con$titute a partial breach of the settlement, nnless there is a cotnpelling or good faith reason for the failure.
The settlement terms·are: 1. Amend the Code ofConduct as described in the Agreement by October 1, 2013. 2. Hold the one to two-day professional development training bythe end of su:rhrner, 2013~ subject to the availability of the agreed-upon ALSDE consultant.
3. Provide a professional developtnentprograrn over the course of the 2013-2014 school year for school administrators and key staffinembers involved in adtninistering discipline.
4. By September 1, 2013~ identify schools with high suspension and high-disparity rates and evaluate whether a plan should be implemented for those schools to address these issues and by October 1~, 2013 implement such plans for those schools.
5. Compile and analyze three years' worth of discipline data by September; 2013. By October.18, 2013, the Executive Director ofStudent Support Services will begin reviewing alllong-tenn suspensio11s and forwarded data on suspensions to the PK-12 assistant superintendents including graphic reports documentingthe suspensi<??S. These reports or som~ variation vyill be made publicly available on the System's website.
6. By October 16, 2013, add out~of~school spspension 'data to the "Electronic, D;;tshboarti.';
7. By Septetnher 2013, initiate Superintendent (or designee) review arid approval of proposed long~term.suspensiop_s lasting longer than20 school days!
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8. Convene working group and develop menu ofalternatives to suspension by February 2014.
9. Implement a suspension tetnplate sitnilarto that used by the Balthnore City Schools by September, 2013.
10! Incorporate S\!Spension policy compliance into principal evaluations beginning with th~ 2014-20.15 school year.
58. A designated School System employee, the ALSDE consultant, and a representative of Plaintiffs will address whether the terms of this agreement have been 1net. There will be ? schedule or timetable to track cmnpliattce and there will be a process established by agreetnent to a<ldress any failure to comply. 59. The ALSDE consultant and a designated School System en1ployee willhave the primary responsibility for monitoring implementation ofthe changes ar1d progress. it1 reaching the•·settlement·terms. 60. Central Office personnel will conduct a regular review of discipline data, complaints, problems, progress, etc., to identify impediments to performing the settlerne.nt ten11s and address them. 61. Thete will be open and periodic communications between Plaintiffs counsel; School System counsel, and the ALSDE consultant (subject to the ALSDE consultant's avaihihi1ity), regarding satisfaction of the Agreement. 62. The Parties willjointly assess and discuss compliance as follows: During the first year, at the end of each quarter; duringthe second year; at the end of each semester; during the third year, at the end of each semester. 63. Neither Party, nor any employee or agent of either Party, has any supervisory authority overthe ALSDE consultant's activities, reports, findings or recommendations.
INDIVIDUAL PLAINTIFFS
64, K.S~: The School System will arrange K.S.'s enrolhnent in summer school or EEOP~. if
possible. Bus passes will be provided for transport: to EEOP after 4:00p.m. 65. C.H.: The School System will provide reasonable career preparation assistance and assistance with the graduation exam. C.H.'s long-term suspension will he expunged ifshe
successfully completes EEOP. C.H.. is now six credits from completing EEOP. She will be permitted to attei1d the next EEOP session. Bus passes wil1 be provided.
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66. D.M.: The School System will arrange for an EEOP counselor to contact D.M. and provide reasonable assistance thtough EEOP with life skills and career preparation.
67. E.lVI.: The School System will help E.M. catch-up by admitting him to summer school. During the regular school year, he will be included in tut01ing sessions for the graduation exam. 68. S.A.~ The School System will admit S.A. to EEOP with bus passes provided. The School System can also assist S.A. with enrollment in the Bishop State GEIJ progran1.
69. G.H.: The School System will help O.H. gain adtnission to P.O.LN.T.E. The School System can also assist G.H. with enrollment in the Bishop State GED program.
70. M.R..; After transitioning tlu·ough P.O.lN.T.E., the School System will allow M.R. to enroll at Vigor High SchooL M.R~ will receive a bus pass for such time as he attends Vigor High School, if the regular System bus service is unavailable from his residence.
ENFORCEMENT
71. The signatories undertake this Agreement to save valuable resources and litigation expenses. This Agreement resolves the case and releases the claims in MR. , et al~ v. Board of School-Commissioners, 11-CV-245. The Court dismissed the case with prejudice. This cmnmitment does not ,relieve the School System frotn fulfilling other obligations under federal, state, or local law.
72. This Agree1nent will become effective upon execution and will remain in effect until August 2016.
73. The undersigned representatives of the Parties certify that they are authorized to enter
into this Agreetnent and to execute and legally bind the Parties to it. This Agre~ment is final and shall inure to the benefit of Plaintiffs and to st~<lents who attend MCPS during the t~rm ofthe-
Agreement; and shall be binding upon the legal representatives }J.lld any successors ofDefendant. 74. Ifany sectipn ofthis Agreement is held to b~ unlawful, invalid or otherwise
unen,forceable by a court ofcompetent jurisdiction, such holding will not affect the validity of the other st(ctions h1 this Agreement. If this OGclirs, representatives of the Plaintiffs and Defenda11t willtneetwithin 20 days to detennip_e if this Agreement should be amended or revised to be ln compliance with the court's decision.
75. The intentofthe Partiesisthatthe Plaintiffs -vviilnot be prevented from seeking enforcement of the Agreement if abreach of the Agreement occurs. The School System
acknowl~dges and agrees that in the event of an alleged breach of this ,Agreement, the Plaintiffs
may seek injunctive/ reliefin federal court to .cure such breach. The, Plaintiffs agree that they will
not pursue any en:fotcetneht action without first attempting to resolve issues in good faith.

Case 1:11-cv-00245-WS-C Document 137-1 Filed 06/28/13 Page 12 of 13

76.

Other than with respect to the dai1ns specifically released by this Agreement, this

Agreetnent shall not preclude any MCPS student frmn pursuing a claitn related to his or her

discipline or suspension in either s~ate or federal court. Nothing in this Agreetnent shall prohibit

any student or parent from pursuing their legal remedies regarding the discipline or suspension of

a MCPS student.

OTHER

77. Each Party will bear its owh costs and attorneys' fees.

78.

Neither Party will make any public statement that in any way disparages or criticizes the

other as to this lawsuit or settlement. Neither side will portray itself as the winner or the other

side as theloser. The Parties wilLsaythat the case has been resolved by agreement and will

po.ttray the settle1nent and the other Party in a neutral or positive light. Both sides can say that

they agreed to the settlement to benefit the students of the School System.

BOARD OF SCHOOL COMMISSIONERS OF lVIOBILE COUNTY
B'lm~a./Lt:h.-
MARTHA P:eEK As Supedri.tendent of Schools
DATE: ~· -2.. 7-/3

-11-

Case 1:11-cv-00245-WS-C Document 137-1 Filed 06/28/13 Page 13 of 13

PLAINTIFF D

M

on behalf of all

the Plaintiffs in M.R., ET AL., v. BOARD OF

SCHOOL COMMISSIONERS OF MOBILE

COUNTY
B~2 I

PL TJFlf R

M

DATE: k!1 Lrl\

v

- 12-

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

M.R., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

BOARD OF SCHOOL COMMISSIONERS )

OF MOBILE COUNTY, et al.,

)

)

Defendants.

)

CIVIL ACTION 11-0245-WS-C

ORDER This matter comes before the Court on the Motion for Judgment on the Pleadings (doc. 56) filed by defendants Jerome Woods, Kirven Lang, and Jason D. Laffitte (collectively, the “Individual Defendants”). The Motion has been briefed and is now ripe for disposition. I. Background.1 This putative class action was brought by six Mobile County Public School (“MCPS”) students pursuant to 42 U.S.C. § 1983, alleging infringement of their procedural due process rights under the Fourteenth Amendment. In particular, plaintiffs maintain that each of them was “long-term suspended [from school] without proper notice or a hearing for minor infractions,” in violation of their “Fourteenth Amendment right to receive notice and a hearing before being punished with long-term suspensions.” (Doc. 1, ¶ 1.) The Complaint names as defendants the Board of School Commissioners of Mobile County (the “Board”), as well as the three Individual Defendants, solely in their official capacities as principals or assistant principals in the MCPS system.2 No claims are asserted against the Individual Defendants in their individual capacities.

1

Because this matter is presented on a Motion for Judgment on the Pleadings, this

Court “must accept the facts alleged in the complaint as true and view them in the light most

favorable to the nonmoving party.” Cannon v. City of West Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001).

2

Defendant Jerome Woods is alleged to be the Principal of Mattie T. Blount High

School. (Doc. 1, ¶ 14.) Defendant Kirven Lang is alleged to be an Assistant Principal at the

same facility. (Id., ¶ 16.) And defendant Jason D. Laffitte is alleged to be the Principal of C.L.

(Continued)

The Complaint asserts a § 1983 procedural due process claim against the Board for its “official disciplinary procedure … that allows principals to impose long-term suspensions without first holding hearings at which students and parents can challenge proposed suspensions.” (Id., ¶ 4.) It also asserts a § 1983 procedural due process claim against the Individual Defendants for their alleged practice of “summarily suspend[ing] students until the end of the semester without following even the minimal procedures set forth in the Board’s official policy.” (Id.) So, plaintiffs contend that the Board has a policy that violates the Fourteenth Amendment, and that the Individual Defendants (who work for the Board) have a custom or practice that does the same thing. The ad damnum clause of the Complaint specifies that plaintiffs seek, inter alia, judicial declarations that defendants’ conduct deprived plaintiffs of their Fourteenth Amendment due process rights, an injunction requiring defendants to cease their unconstitutional activities, other equitable relief, and an award of costs and attorney’s fees. (Id. at 32.) Plaintiffs do not claim monetary damages.
The Individual Defendants have now filed a Motion for Judgment on the Pleadings, in which they argue that plaintiffs’ claims against them are redundant of their claims against the Board, and should therefore be dismissed. Plaintiffs oppose the Motion for the stated reasons that (i) their claims against the Individual Defendants are not redundant and (ii) their claims are confined to seeking injunctive and declaratory relief.3

Scarborough Middle School. (Id., ¶ 18.) Both Blount and Scarborough are public schools in the MCPS system. As to each of the Individual Defendants, the Complaint alleges that in carrying out the duties and actions at issue herein, that defendant was “a state actor acting under color of state law” who is “named as a defendant in his official capacity.” (Id., ¶¶ 15, 17, 19.)

3

Plaintiffs also oppose the Motion for Judgment on the Pleadings as being

“premature” because the deadline for plaintiffs to amend their Complaint is July 31, 2012. This

objection is unfounded. Nothing in Rule 12(c) or the case law construing it forbids a defendant

from seeking judgment on the pleadings until expiration of a scheduling order deadline for

amending pleadings. Although plaintiffs seize on language in Rule 12(c) specifying that a party

may move for judgment on the pleadings “[a]fter the pleadings are closed,” abundant precedent

confirms that this innocuous phrase means nothing more than the filing of a complaint and answer. See, e.g., Doe v. United States, 419 F.3d 1058, 1061 (9th Cir. 2005) (“[T]he pleadings

are closed for the purposes of Rule 12(c) once a complaint and answer have been filed.”); U.S. v.

Dish Network L.L.C., 754 F. Supp.2d 1004, 1007 (C.D. Ill. 2011) (Rule 12(c) “permits a party to

move for judgment after the complaint and answer have been filed by the parties”); Atiyeh v.

National Fire Ins. Co. of Hartford, 742 F. Supp.2d 591, 595 (E.D. Pa. 2010) (“The pleadings are

(Continued)

-2-

II. Analysis. In this Circuit, “[j]udgment on the pleadings is proper when no issues of material fact
exist, and the moving party is entitled to judgment as a matter of law based on the substance of the pleadings and any judicially noticed facts.” Cunningham v. District Attorney’s Office for Escambia County, 592 F.3d 1237, 1255 (11th Cir. 2010) (citation omitted); see also Palmer & Cay, Inc. v. Marsh & McLennan Companies, Inc., 404 F.3d 1297, 1303 (11th Cir. 2005) (“Judgment on the pleadings is appropriate where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law.”) (citations omitted). As a general rule, courts “will not consider matters outside the pleadings when passing on a Rule 12(c) motion.” Horsley v. Feldt, 304 F.3d 1125, 1136 n.6 (11th Cir. 2002).4
The legal issue presented by the Individual Defendants in their Rule 12(c) Motion is narrowly circumscribed, to-wit: Whether plaintiffs can maintain a § 1983 claim against them for declaratory and injunctive relief solely in their official capacity as MCPS employees/ administrators, when plaintiffs are already pursuing a separate § 1983 claim against the Board itself seeking the same remedies.

closed after an answer is filed, along with a reply to any additional claims asserted in the answer.”); In re Enron Corp. Securities, Derivative & “ERISA” Litigation, 439 F. Supp.2d 692, 695 (S.D. Tex. 2006) (“Once a responsive pleading has been filed, a motion to dismiss for failure to state a claim should properly be filed as a motion for judgment on the pleadings.”). Plaintiffs identify no authority to the contrary. Here, the Complaint was filed in May 2011 and all defendants filed their Answer in June 2011. The pleadings have been “closed” for Rule 12(c) purposes for more than a year; thus, the Motion for Judgment on the Pleadings is plainly not premature, and this objection need not detain the Court further.

4

The limited purposes and obvious utility of Rule 12(c) motions were aptly

summarized by one federal court as follows: “Judgment on the pleadings is, of course, not lightly

to be given. On the other hand, litigants should not be required to go through the full and

elaborate process of trial of issues when there is a dominating legal principle governing liability

which is dispositive of the case without the necessity of trial.” Moss v. School Dist. of

Norristown, 33 F.R.D. 518, 519 (E.D. Pa. 1963); see also Scranton Times, L.P. v. Wilkes-Barre

Pub. Co., 2009 WL 3100963, *2 (M.D. Pa. Sept. 23, 2009) (“A court should only grant a motion

for judgment on the pleadings if it is clear that the merits of the controversy can be fully and

fairly decided in this summary manner.”).

-3-

A. The Redundancy of Official-Capacity and Entity Claims. The logical starting point is the well-worn proposition that “[w]hen an officer is sued under Section 1983 in his or her official capacity, the suit is simply another way of pleading an action against an entity of which an officer is an agent. …. Such suits against municipal officers are therefore, in actuality, suits directly against the city that the officer represents.” Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (footnote, citations, and internal marks omitted); see also Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (“[A § 1983] suit against a state official in his her official capacity is not a suit against the official but rather is a suit against the official’s office. … As such, it is no different from a suit against the State itself.”) (citations omitted); Penley v. Eslinger 605 F.3d 843, 854 (11th Cir. 2010) (“Official-capacity suits … generally represent only another way of pleading an action against an entity of which an officer is an agent.”) (citation omitted); Snow ex rel. Snow v. City of Citronelle, AL, 420 F.3d 1262, 1270 (11th Cir. 2005) (similar). In reliance on this notion, courts in this Circuit routinely and overwhelmingly deem suits against both a local government official in his official capacity and the entity of which the officer is an agent to be redundant, and dismiss the official-capacity claims against the individual defendant on that basis. See, e.g., Abusaid v. Hillsborough County Bd. of County Com’rs, 405 F.3d 1298, 1302 n.3 (11th Cir. 2005) (explaining that where plaintiff named county and county fire marshal in his official capacity as separate defendants, only the fire marshal’s employer – the county – was proper party); Busby, 931 F.2d at 776 (“To keep both the City and the officers sued in their official capacity as defendants in this case would have been redundant and possibly confusing to the jury.”).5 Plainly, then, extensive authorities illustrate the well-entrenched

5

See also May v. Mobile County Public School System, 2010 WL 3039181, *2 n.5

(S.D. Ala. July 13, 2010) (noting that to the extent plaintiff was suing superintendent and school

principal in their official capacities, “such claims are redundant of the claims against the Board

and due to be dismissed.”); Btesh v. City of Maitland, 2010 WL 883642, *5 (M.D. Fla. Mar. 5,

2010) (“When identical Section 1983 claims are made against both a governmental entity and the

entity’s officers, employees, or agents in their official capacities, courts should dismiss the claim

against the named individual defendants in their official capacities as redundant and possibly

confusing to the jury.”) (citations and internal quotation marks omitted); Carr v. Alabama Dep’t

of Youth Services, 2009 WL 903280, *7 (M.D. Ala. Mar. 31, 2009) (“Because plaintiff has sued

her employer directly, her official capacity claim against Wood is redundant and is due to be

dismissed.”); Bean v. Fulton County School System, 2008 WL 515007, *2 (N.D. Ga. Feb. 22,

(Continued)

-4-

principle that suits against both an official in his or her official capacity and the entity that official represents are redundant and unnecessary.
B. Plaintiffs’ Counterarguments are Not Persuasive. In response, plaintiffs propound two arguments. First, plaintiffs insist that their claims against the Board and against the Individual Defendants “are not the same,” because they charge the Board with “implementing a policy authorizing the violation of due process,” and the Individual Defendants with violating plaintiffs’ due process rights, “whether or not the policy itself authorizes violations.” (Doc. 67, at 7.) But this argument amounts to disingenuous hairsplitting. Under any reasonable reading, the Complaint states the same claim (violation of Fourteenth Amendment due process rights by summarily suspending plaintiffs for longer than 10 days without notice or hearing) in two different ways, first that the Board has a policy that violates plaintiffs’ rights and second that the Board has a custom or practice that violates plaintiffs’ rights (irrespective of what the official policy states). Either way, it is the same claim (due process violation based on failure to provide adequate pre-suspension notice and hearing) against the same real party in interest (the Board).6

2008) (where plaintiff sued school district and superintendent in official capacity, granting superintendent’s motion to dismiss because “[i]t would be redundant to allow plaintiffs to assert the same claims against both the School District and Mr. Wilson in his official capacity”); Adams v. City of Orlando Code Enforcement Bd., 2007 WL 1229103, *2 (M.D. Fla. Apr. 26, 2007) (“the Court will dismiss the Section 1983 claims against Defendant Dyer in his official capacity, as the local governmental unit was sued directly in the Complaint and remains a Defendant in the instant case”); Nixon v. Autauga County Bd. of Educ., 273 F. Supp.2d 1292, 1296-97 (M.D. Ala. 2003) (“Where, as here, the proper defendant is Nixon’s employer and that employer, the Board, has already been made a defendant, official capacity claims against members of the Board and Nixon’s supervisor are redundant and due to be dismissed.”); Garrett v. Clarke County Bd. of Educ., 857 F. Supp. 949 (S.D. Ala. 1994) (where plaintiff sued school board and superintendents in official capacities under § 1983, “the plaintiff has sued the Board directly, so all of the § 1983 claims against the Superintendents in their official capacities are due to be dismissed”).

6

Regardless of whether the nominal defendant is the Board or its officials in their

official capacities, plaintiffs’ burden is the same, to-wit: to establish that the Board’s policy or

custom deprived plaintiffs of their due-process rights. See generally Craig v. Floyd County, Ga., 643 F.3d 1306, 1310 (11th Cir. 2011) (reciting bedrock § 1983 principles that liability “may not

be based on the doctrine of respondeat superior,” but that municipality can only be held liable

where plaintiff proves “policy or custom” that violated constitutional rights); Doe v. School Bd. of Broward County, Fla., 604 F.3d 1248, 1263 (11th Cir. 2010) (school board may be held liable

(Continued)

-5-

Some elaboration on this point may be helpful. Again, as a matter of law, “suits against an official in his or her official capacity are suits against the entity the individual represents.” Burrell v. Board of Trustees of Ga. Military College, 970 F.2d 785, 789 n.10 (11th Cir. 1992) (citation omitted); see also Cooper v. Dillon, 403 F.3d 1208, 1221 n.8 (11th Cir. 2005) (“We note that a suit against Dillon in his official capacity is the same as a suit against the municipality of the City of Key West.”) (citation omitted); Busby, 931 F.2d at 776 (“suits against a municipal officer sued in his official capacity and direct suits against municipalities are functionally equivalent”). What is the entity that the Individual Defendants represent? The Complaint does not specify, but it could only be the Board. Thus, plaintiffs’ claims against the Individual Defendants in their official capacities are, in actuality, claims against the Board. But the Board is already a defendant in this case. What reason could there possibly be for naming the Board as a defendant in two different ways? This situation implicates precisely the concern articulated by the Eleventh Circuit in Busby that including as defendants at trial both the Board and the Individual Defendants in their official capacities would be “redundant and possibly confusing.” 931 F.2d at 776. Plaintiffs can get to the same place (without the pitfalls of inefficiency and confusion) by suing the Board – and the Board alone – for having a policy or custom of doling out long-term suspensions without first providing proper notice and a hearing. Naming the Individual Defendants in their official capacities as separate, additional parties adds nothing to those claims other than an overlay of needless confusion and redundancy.7

under § 1983 “only if such constitutional torts result from an official government policy, the actions of an official fairly deemed to represent government policy, or a custom or practice so pervasive and well-settled that it assumes the force of law”) (citation omitted); Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir. 2005) (“When suing local officials in their official capacities under § 1983, the plaintiff has the burden to show that a deprivation of constitutional rights occurred as a result of an official government policy or custom.”) (footnote omitted). Under either variant of plaintiffs’ claim, then, a “policy or custom” attributable to the Board is necessary for § 1983 liability to attach.

7

Another way of highlighting this point is to examine plaintiffs’ statements that

“[r]egardless of the policy of the Board, the Plaintiffs seek to enjoin the long-standing practice of

suspending students without due process at Blount High School and Scarborough Middle

School,” and that “[a]ll relief sought by Plaintiffs is aimed at preventing additional deprivations

of students [sic] rights.” (Doc. 67, at 7-8.) So plaintiffs want an injunction bringing to a halt the

alleged practice of suspending students without due process. Suppose plaintiffs prevail and

(Continued)

-6-

Second, plaintiffs urge the Court to find that the entire Busby line of authorities is distinguishable because Busby involved claims for money damages, whereas the plaintiffs in this action seek only injunctive and declaratory relief. The immediate problem with plaintiffs’ argument is that they identify no authorities recognizing such a distinction, much less declining to apply the rule in Busby where claims of injunctive and declaratory relief are in play.8 This

obtain the desired injunction. What does an injunction against the Individual Defendants in their official capacities accomplish that the injunction against the Board would not? Plaintiffs do not say, and the Court cannot imagine what it might be. To enjoin the Board from implementing an unconstitutional policy, custom or practice as to student discipline would effectively forbid the Individual Defendants (in their official capacities as Board officials, employees and agents) from implementing such a policy, custom or practice. To enjoin the Individual Defendants in their official capacities separately and in addition to an injunction of the Board would afford not an iota of additional relief to plaintiffs. So, again, inclusion of these official-capacity claims against Individual Defendants is a wasteful, redundant, and ultimately pointless enterprise that would serve only to confuse the issues, bog down the proceedings, and distract the finder of fact at trial.

8

The one decision identified by plaintiffs is Welch v. Laney, 57 F.3d 1004 (11th

Cir. 1995). In Welch, the Eleventh Circuit found that Eleventh Amendment immunity did not

bar a plaintiff’s claims against a sheriff and sheriff’s deputy in their official capacities for

prospective injunctive relief. Id. at 1008 (“the Eleventh Amendment does not insulate state

officials acting in their official capacities from suit in federal court, at least to the extent the

complainant seeks prospective injunctive relief”). Importantly, the Welch plaintiff sued only the

individuals, not any overarching entity (at least, as far as the sheriff’s defendants were

concerned), so Busby on its face was not applicable. Simply put, the issue in Welch (whether and

when Eleventh Amendment immunity applies to state officials sued in their official capacities) is

entirely distinct from the question raised by the Individual Defendants’ Motion to Dismiss. This

case is not about immunity at all, but is instead about the analytically distinct Busby doctrine that

a plaintiff cannot sue both a municipality and a municipal official in his official capacity for the

same wrong because doing so would be redundant and confusing. Welch says nothing that

would negate that rule where a plaintiff seeks prospective injunctive relief. And of course, the

Individual Defendants are not state officials, so any kind of Eleventh Amendment analysis would

be wholly inapposite here, even if the Individual Defendants had raised it as a ground for their

Motion to Dismiss (which they unquestionably have not). See, e.g., Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499, 1511 (11th Cir. 1990) (“We conclude … that the Baldwin County

Board of Education is not an ‘arm of the State’ for purposes of Eleventh Amendment immunity ….”); Eason v. Clark County School Dist., 303 F.3d 1137 (9th Cir. 2002) (collecting authorities

and pointing out that “most courts have held that school districts are not entitled to Eleventh

Amendment immunity”).

-7-

Court cannot and will not develop plaintiffs’ legal argument for them.9 More fundamentally, the Court’s own research (including the authorities cited in § II.A., supra, many of which involved both damages claims and claims for injunctive relief) has revealed no cases where courts in this Circuit have treated the Busby rule any differently for claims of prospective injunctive relief than for those involving money damages. If such a distinction existed, one would expect courts applying Busby to dismiss only the money-damages claims against the government officials in their official capacities, while allowing the injunctive and declaratory claims to proceed to trial. From this Court’s research, it appears that no such strand can be found in the Busby line of precedents. Certainly, plaintiffs have not identified one. And the Supreme Court decision on which Busby is predicated strongly implies that its reasoning applies to all types of claims, not just those seeking a damages remedy. See Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (“There is no longer a need to bring official-capacity actions against local officials, for … local government units can be sued directly for damages and injunctive or declaratory relief.”) (emphasis added).
The bottom line is this: Plaintiffs insist that official-capacity claims against municipal officials are not redundant of claims against the municipality as long as they seek injunctive relief, not money damages. But they identify not a single authority that supports this proposition. The Court’s research discloses none. And cases in this Circuit, apparently following the Supreme Court’s lead in Graham, routinely dismiss both damages and injunctive relief claims against municipal agents in their official capacities as redundant and confusing under Busby where, as here, the entity has also been sued for the same relief. Under these circumstances, the Court will not unilaterally devise a sweeping exception to the Busby rule that is drawn from nothing more than thin air. This conclusion holds particularly true given that, as discussed

9

See, e.g., Vision Bank v. Merritt, 2010 WL 5474161, *4 (S.D. Ala. Dec. 8, 2010)

(“If Merritt wishes to pursue such a legal theory, it is incumbent on him to perform the necessary

research and develop that argument, rather than stating it in the vaguest of outlines and expecting

this Court to fill in the gaps.”); York v. Day Transfer Co., 525 F. Supp.2d 289, 301 n.10 (D.R.I.

2007) (“It is not enough merely to mention a possible argument in the most skeletal way, leaving

the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.”);

Federal Ins. Co. v. County of Westchester, 921 F. Supp. 1136, 1139 (S.D.N.Y. 1996) (“Under the

adversary system, it is counsel’s responsibility to explain why thesepoints have legal merit; the

Court does not serve as counsel’s law clerk.”).

-8-

supra, if plaintiffs successfully obtain a prospective injunction barring the Board from implementing a custom or policy of imposing long-term suspensions of MCPS students without prior notice and hearing, then imposition of a similar injunction against the Individual Defendants in their official capacities would gain precisely nothing for plaintiffs, but would simply reiterate the injunction against the Board. Repetition neither makes the heart grow fonder nor the injunction grow stronger, and an entity need not be told the same thing twice before a court order will stick. This case is about claims for injunctive relief against the Board, and plaintiffs cannot repackage those same claims against the Individual Defendants in their official capacities to bring them twice, at the cost of unnecessary redundancy, inefficiency, and risk of confusion. III. Conclusion.
For all of the foregoing reasons, the Individual Defendants’ Motion for Judgment on the Pleadings (doc. 56) is granted. Plaintiffs’ claims against defendants Jerome Woods, Kirven Lang, and Jason D. Laffitte are dismissed without prejudice, and the Clerk of Court is directed to terminate those individuals as parties defendant.
DONE and ORDERED this 18th day of July, 2012. s/ WILLIAM H. STEELE CHIEF UNITED STATES DISTRICT JUDGE
-9-

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

M.R., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

BOARD OF SCHOOL COMMISSIONERS )

OF MOBILE COUNTY,

)

)

Defendant.

)

CIVIL ACTION 11-0245-WS-C

ORDER This matter comes before the Court on defendant’s Motion to Abstain and Dismiss (doc. 72). The Motion has been briefed and is now ripe for disposition. I. Relevant Background. This putative class action was brought by eight Mobile County Public School System students against the Board of School Commissioners of Mobile County (the “Board”). Plaintiffs allege infringement of their procedural due process rights under the Fourteenth Amendment, in violation of 42 U.S.C. § 1983. In particular, the Amended Complaint alleges that plaintiffs were “long-term suspended without proper notice or a hearing for minor infractions.” (Doc. 91, ¶ 1.) The Amended Complaint purports to “challenge[] the custom and practice of many school administrators in the MCPSS of long-term suspending students without first providing notice … and hearings so that students and parents can challenge those suspensions, and the Board’s policy of turning a blind eye to that custom.” (Id., ¶ 2.) Plaintiffs also challenge the Board’s “supervision, training and monitoring policies and practices” (id.), on the theory that such policies and practices caused the alleged constitutional deprivation to occur. Plaintiffs seek injunctive and declaratory relief, but no monetary damages. On June 19, 2012, more than a year after it filed an Answer (doc. 6), the Board filed its Motion to Abstain and Dismiss (doc. 72). In that Motion, the Board asks this Court to abstain from hearing this case and to dismiss the Amended Complaint pursuant to the Younger abstention doctrine. The Board’s Motion centers on the availability of judicial review of the

challenged disciplinary suspensions in Alabama juvenile courts. In that regard, Alabama law provides that “[a] juvenile court … shall have original jurisdiction in proceedings concerning any child … [w]here it is alleged that the rights of a child are improperly denied or infringed in proceedings resulting in suspension, expulsion, or exclusion from a public school.” Ala. Code § 12-15-115(b)(2). There is no question that, pursuant to this statute, an Alabama juvenile court would have had jurisdiction over plaintiffs’ constitutional claims had they chosen to raise them in that forum. See, e.g., Dothan City Bd. of Educ. v. V.M.H., 660 So.2d 1328, 1330 (Ala.Civ.App. 1995) (rejecting school board’s challenge to juvenile court jurisdiction where student was suspended for 10 days, finding that predecessor statute provided for jurisdiction in such circumstances, and concluding that “[t]o argue otherwise is to engage in sophistry”). There is likewise no debate that plaintiffs in this case never did seek judicial review in Alabama’s juvenile courts pursuant to § 12-15-115(b)(2), but instead bypassed that procedure in favor of initiating judicial proceedings under 42 U.S.C. § 1983 to challenge their suspensions in federal court. The Board maintains that, under these circumstances, the Younger doctrine counsels in favor of abstention and dismissal of the Amended Complaint with prejudice. Plaintiffs disagree. II. Analysis.
A. Timeliness of Defendant’s Younger Objection. As a threshold matter, plaintiffs assert that the Motion to Abstain and Dismiss should be summarily denied because the Board tarried too long before filing it. Plaintiffs correctly note that considerable discovery (including numerous depositions and extensive document production) took place and this federal lawsuit proceeded for more than a year before the Board raised the Younger abstention issue that is the cornerstone of its Motion. Moreover, there is no question that this argument was available to the Board from the outset of this case. Certainly, the Board could have raised its Younger abstention argument far sooner than it did. Defendant has proffered neither explanation nor excuse for this omission. Nonetheless, plaintiffs’ timeliness objection fails because the Court is aware of no authority (and plaintiffs cite none) holding or suggesting that Younger abstention is barred on a timeliness / waiver / laches theory unless it is invoked at the earliest possible moment. This is not a Rule 12(b)(2) – (5) motion, and plaintiffs have not explained why it should be treated as if it were. To be sure, plaintiffs state that “abstention under Younger is inappropriate where ‘proceedings of substance on the merits’ have taken place in the federal court.” (Doc. 77, at 2.)
-2-

But this construction skews the correct legal standard. From a timing standpoint, what matters is whether state court proceedings began before “proceedings of substance on the merits” took place in federal court, not whether the motion to abstain was filed before such “proceedings of substance on the merits” occurred in federal court. See, e.g., Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 238, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984) (“Younger abstention is required … only when state court proceedings are initiated before any proceedings of substance on the merits have taken place in the federal court.”) (citation and internal quotation marks omitted); Old Republic Union Ins. Co. v. Tillis Trucking Co., 124 F.3d 1258, 1262 (11th Cir. 1997) (similar). Plaintiffs have identified no legal authority extending and importing the Hawaii Housing standard into the context of evaluating the timeliness of a motion to abstain. Thus, plaintiffs’ stance that a Younger abstention request is untimely if it is filed after proceedings of substance on the merits have occurred in federal court appears to be devoid of legal support. For that reason, the Court rejects plaintiffs’ procedural objection to defendant’s invocation of the Younger doctrine at this time.1 Just because the Board could have invoked Younger abstention before now does not mean that it was required to do so, or that its delay in that regard is tantamount to a waiver.
B. Merits of Defendant’s Younger Objection. 1. Overview of Younger Abstention Doctrine.

1

To avoid confusion, the Court notes that the Hawaii Housing standard is satisfied

here, with regard to the relative timing of the state and federal proceedings. As discussed infra,

the Board’s theory is that state judicial proceedings are deemed to be ongoing in this case, as a

matter of law. If state proceedings are deemed to be ongoing, then they were initiated well

before any proceedings of substance on the merits in this federal action. Accordingly, Hawaii

Housing does not support plaintiffs’ timeliness objection. Likewise, the Court finds no merit to

plaintiffs’ suggestion that, insofar as the Motion to Abstain and Dismiss is rooted in Rules

12(b)(1) and (6), it is “procedurally improper because Defendants answered Plaintiffs’

complaint.” (Doc. 77, at 3 n.2.) The Board’s Answer clearly preserves Rule 12(b)(1) and (6)

defenses as its First and Second Affirmative Defenses. (Doc. 6, at 11.) As a result, the Board’s

Motion is fully consistent with Rule 12(b), which provides that “[n]o defense or objection is

waived by joining it with one or more other defenses or objections in a responsive pleading.”

Rule 12(b), Fed.R.Civ.P. Under any reasonable analysis, the Board has not waived the right to

seek dismissal of this action on grounds of lack of subject-matter jurisdiction or failure to state a

claim upon which relief can be granted.

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The law is clear that “generally, as between state and federal courts, … the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction.” Ambrosia Coal & Constr. Co. v. Morales, 368 F.3d 1320, 1328 (11th Cir. 2004) (citation omitted). Nonetheless, “[f]ederal courts should abstain from exercising their jurisdiction if doing so would disregard the comity between the States and the National Government.” Wexler v. Lepore, 385 F.3d 1336, 1339 (11th Cir. 2004) (citation and internal quotation marks omitted). This doctrine is known as Younger abstention. “The Younger doctrine … is an extraordinary and narrow exception to the duty of a district court to adjudicate a controversy properly before it.” Green v. Jefferson County Com’n, 563 F.3d 1243, 1251 (11th Cir. 2009) (citations and internal quotation marks omitted). Although Younger abstention was traditionally utilized in the criminal context, “its principles are fully applicable to noncriminal judicial proceedings when important state interests are involved.” 31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir. 2003) (citation and internal quotation marks omitted); see also New Orleans Public Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350, 367-68, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (“NOPSI”) (“our concern for comity and federalism has led us to expand the protection of Younger beyond state criminal prosecutions, to civil enforcement proceedings”).2
“A court may abstain from granting injunctive relief under Younger where: (1) the state proceeding is ongoing; (2) the proceeding implicates an important state interest; and (3) there is an adequate opportunity to raise a constitutional challenge in the state court proceedings.” Chen ex rel. V.D. v. Lester, 2010 WL 339789, *4 (11th Cir. Feb. 1, 2010); see also 31 Foster Children, 329 F.3d at 1274 (identifying these same factors as governing determination of whether Younger abstention applies). Plaintiffs’ opposition to the Motion to Abstain focuses on the first factor; indeed, there appears to be no colorable basis in fact or law for disputing that the second and third factors are satisfied here.3

2

In light of these clear, binding holdings that Younger abstention is properly

extended to the civil context, plaintiffs’ contention that defendants are attempting “to stretch

Younger beyond its logical bounds” because there is no “pending state criminal prosecution”

(doc. 77, at 8) is inaccurate and unavailing.

3

To be sure, plaintiffs do assert that the ongoing state-court juvenile proceedings

“do not implicate Alabama’s interest in the administration of its judicial system.” (Doc. 77, at

(Continued)

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2. The “Ongoing State Proceeding” Requirement.
Again, Younger abstention is appropriate in a civil case only where there is an ongoing
state proceeding. As a factual matter, there is no “ongoing state proceeding” at this time.
Plaintiffs did not file judicial actions in Alabama juvenile courts, although they could have done
so pursuant to Alabama Code § 12-15-115(b)(2). Nonetheless, the Board contends that this
requirement is satisfied here because the completed administrative proceedings and the
availability of state judicial review are properly viewed in the aggregate as a single unitary
proceeding for Younger purposes. Under the “unitary proceeding” rationale, the state proceeding
is still ongoing because plaintiffs have not seen it through to conclusion of the state judicial
review proceedings. Plaintiffs ridicule this argument, scoffing that “Defendants invoke a
hypothetical lawsuit to justify the application of a nonexistent rule.” (Doc. 77, at 1.) In
8.) But plaintiffs do not elaborate on this remark. At any rate, the Court readily finds that this case involves just the kind of important state interest that may justify Younger abstention. See, e.g., 31 Foster Children, 329 F.3d at 1275 (second factor satisfied where state proceedings involved dependency petitions relating to foster children); Chen, 2010 WL 339789, at *4 (“Because family relations and matters of child custody are important state interests, the second … factor is satisfied.”); Hudson v. Campbell, 663 F.3d 985, 988 (8th Cir. 2011) (“important state interest” criterion for Younger abstention satisfied because “Missouri Medicaid has an important interest in administering benefits in a manner that ensures that those of its citizens who are in need of and who are eligible for those benefits receive them”); see generally Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (“Providing public schools ranks at the very apex of the function of a State.”). Plaintiffs’ argument appears to rest on the premise that the only state interests that matter for Younger abstention purposes are those relating to administration of the state judicial system. This is incorrect. See NOPSI, 491 U.S. at 364 (all that is required is “that the State have a legitimate, substantial interest in its pending proceedings”); 31 Foster Children, 329 F.3d at 1275 (“Proceedings necessary for the vindication of important state policies or for the functioning of the state judicial system … evidence the state’s substantial interest in the litigation.”) (citation omitted and emphasis added); San Jose Silicon Valley Chamber of Commerce Political Action Committee v. City of San Jose, 546 F.3d 1087, 1094 (9th Cir. 2008) (explaining that “[t]he importance of the interest is measured by considering its significance broadly, rather than by focusing on the state’s interest in the resolution of an individual’s case,” and indicating that preserving the integrity of horse racing is an example of an important state interest justifying Younger abstention) (citations omitted). In short, plaintiffs cannot reasonably suggest that state proceedings relating to discipline of Alabama public school students do not implicate important state interests for Younger abstention purposes.
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actuality, however, the Board’s position is much stronger – and is backed by much more authoritative heft – than plaintiffs’ dismissive, off-the-cuff rejoinder admits.
The First, Third, Fourth, Seventh and Eighth Circuits have all adopted the “unitary proceeding” reasoning touted by the Board to deem state proceedings ongoing as a matter of law for Younger purposes where state judicial review is available from a final administrative proceeding, even where a plaintiff has not availed itself of that judicial review mechanism. See Hudson v. Campbell, 663 F.3d 985, 988 (8th Cir. 2011) (“Missouri law provides for administrative, circuit court, and appellate review of Medicaid eligibility decisions, …, remedies that Hudson has not yet exhausted, and thus Hudson’s underlying state proceeding is ongoing” for Younger abstention purposes); Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 167 (4th Cir. 2008) (“we hold that whereas here Laurel seeks to invalidate a state judgment [entered via administrative order] by filing a federal action and circumventing state-court judicial remedies, the state proceedings remain ‘pending’ within the meaning of Younger abstention.”); MaymoMelendez v. Alvarez-Ramirez, 364 F.3d 27, 35 (1st Cir. 2004) (“Younger now has to be read as treating the state process … as a continuum from start to finish.”); Majors v. Engelbrecht, 149 F.3d 709, 713 (7th Cir. 1998) (explaining that Younger precludes federal intervention in state appellate proceedings when a state court loser files a federal suit in lieu of appealing the decision to a state appellate court, and that although “the proceedings here are administrative, not judicial,” that is “a distinction without a difference”); O’Neill v. City of Philadelphia, 32 F.3d 785, 791 (3rd Cir. 1994) (holding that “state proceedings remain ‘pending,’ within the meaning of Younger abstention, in cases … where a coercive administrative proceeding has been initiated by the State in a state forum, where adequate state-court judicial review of the administrative determination is available to the federal claimants, and where the claimants have chosen not to pursue their state-court judicial remedies, but have instead sought to invalidate the State’s judgment by filing a federal action”). This reasoning represents the majority view on the subject. See, e.g., San Jose Silicon Valley Chamber of Commerce Political Action Committee v. City of San Jose, 546 F.3d 1087, 1093-94 (9th Cir. 2008) (characterizing as the “majority rule” the proposition “that the administrative proceeding and the possibility for state court review are to be viewed as one unitary proceeding”).
In response, plaintiffs do not argue that the majority view is misguided, nor do they make any showing that the Eleventh Circuit has not adhered or has signaled that it would not adhere to
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that majority view.4 They do not indicate that the majority view cases are wrongly decided, and do not urge this Court to find that the minority view is better reasoned or more persuasive. Given the paucity of briefing on this point, the Court declines to wade into that morass sua sponte, but will accept the majority rule espoused by the O’Neill line of precedents as supplying the rule of decision herein.5
In response to the O’Neill line of cases, plaintiffs state in conclusory fashion that those authorities are distinguishable because they “involved state judicial or quasi-judicial administrative proceedings where Younger abstention would at least arguably have been appropriate.” (Doc. 77, at 5.) Plaintiffs provide the Court with no indication of what they mean by “quasi-judicial administrative proceedings,” nor do they articulate why the school disciplinary proceedings at issue here would not fall into that category. For that matter, plaintiffs do not even

4

To be sure, plaintiffs assert that “controlling 11th Circuit precedent is consistent

with the position that Younger abstention is not appropriate where no state case is pending

following a final decision by a state administrative agency.” (Doc. 77, at 5.) The Eleventh

Circuit has never said that; indeed, plaintiffs identify no binding precedent in which that tribunal

has even hinted at such a result. Nor do plaintiffs point to any Eleventh Circuit reasoning that

they maintain is in any way inconsistent with the majority rule as set forth by the five appellate

courts identified by the Board and discussed supra. Simply put, the Court has no reason to

believe – and plaintiffs have offered none – that the Eleventh Circuit would break rank with the

majority of its brethren on this question.

5

More than two decades ago, the Supreme Court declined to rule definitively on

the issue. See NOPSI, 491 U.S. at 369 (where city council argued that “the litigation, from

agency through courts, is to be viewed as a unitary process that should not be disrupted, so that

federal intervention is no more permitted at the conclusion of the administrative stage than

during it,” stating that “[w]e will assume, without deciding, that this is correct”). Similarly, here,

plaintiffs do not ask this Court to determine the legal validity of the “unitary proceeding” theory

of Younger abstention, much less offer cogent arguments championing the minority view. At

best, plaintiffs merely list a few of the minority-rule precedents in a footnote, with no discussion

or analysis. (Doc. 77, at 5 n.4.) Federal courts do not develop parties’ legal arguments for them. See, e.g., Fils v. City of Aventura, 647 F.3d 1272, 1284 (11th Cir. 2011) (“district courts cannot

concoct or resurrect arguments neither made nor advanced by the parties”); Continental Motors,

Inc. v. Jewell Aircraft, Inc., --- F. Supp.2d ----, 2012 WL 3113136, *5 n.13 (S.D. Ala. July 31,

2012) (“Continental has not made or developed such an argument, and this Court cannot and will

not do so on a litigant’s behalf.”). Given plaintiffs’ election not to contest the validity of the

majority rule in any meaningful way, this Court will accept and apply the O’Neill line of

authorities (i.e., the majority rule), without embarking on a sua sponte analysis of which

competing line of precedent is more persuasive.

-7-

explain why, under Younger, they believe the character of the administrative proceedings matters. Such a fragmentary, undeveloped argument does not form a viable basis for opposing the Motion to Abstain in this case. See generally Pears v. Mobile County, 645 F. Supp.2d 1062, 1081 n.27 (S.D. Ala. 2009) (“The parties … cannot be heard to balk if the undersigned does not perform their research and develop their arguments for them.”); York v. Day Transfer Co., 525 F. Supp.2d 289, 301 n.10 (D.R.I. 2007) (“It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.”) (citation omitted); Federal Ins. Co. v. County of Westchester, 921 F. Supp. 1136, 1139 (S.D.N.Y. 1996) (“Under the adversary system, it is counsel’s responsibility to explain why these points have legal merit; the Court does not serve as counsel’s law clerk.”).6
Next, plaintiffs cite Eleventh Circuit authorities and assert that “[i]n each of these cases, a case in state court was already under way or decided but available to appeal, which was a necessary ground for Younger abstention.” (Doc. 77, at 6.) Plaintiffs may well have accurately characterized the procedural posture of these cases. But they have not explained why that posture mattered. In other words, they have presented neither argument nor authority supporting their proposition that an actual state judicial proceeding being underway as a factual matter is “a

6

Reading between the lines, it appears that plaintiffs may be attempting to exploit

the remedial/coercive distinction addressed in certain quarters of the case law. See, e.g., Brown ex rel. Brown v. Day, 555 F.3d 882, 888 n.5 (10th Cir. 2009) (“we will use the dichotomy

between remedial and coercive administrative proceedings … as the touchstone for determining

whether the administrative proceeding is the type of proceeding that merits Younger abstention.

We prefer the coercive/remedial distinction because our sister circuits tend to use that

articulation.”). But federal appellate courts are far from unanimous in ascribing dispositive

significance to whether the state proceedings are coercive or remedial. Just last year, for

example, the Eighth Circuit clarified its position that “[a]lthough we have recognized the

existence of the coercive-remedial distinction in other of our abstention cases …, we have not

considered the distinction to be outcome determinative,” and noted that it has “afforded Younger

deference to the state administrative proceedings without classifying the proceeding as coercive

or remedial.” Hudson, 663 F.3d at 987-88. Plaintiffs have not articulated reasoning or

explanation for any of the following: (i) why, as a matter of law, the coercive/remedial

framework properly applies here; (ii) on which side of the coercive/remedial line the underlying

state proceedings in this case rest, and why; and (iii) what the nature, form and content of the

state administrative proceedings were, so that a reasoned determination could be made as to

whether said proceedings are properly classified as coercive or remedial. What plaintiffs have

provided, instead, is only the barest shell of an argument.

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necessary ground for Younger abstention.” Certainly, plaintiffs do not point to holdings or dicta by the Eleventh Circuit suggesting that in the absence of an actual, live state-court judicial proceeding, Younger abstention does not apply. And, as discussed supra, they offer no reason to believe that the Eleventh Circuit would not adopt the “unitary proceeding” notion that the majority of appellate courts have embraced to find the “ongoing proceeding” requirement satisfied where, as here, the administrative proceeding is completed and the plaintiff has a right to invoke state judicial review, but instead files a § 1983 action in federal court. Thus, merely stating (as plaintiffs do) that, to date, the Eleventh Circuit has addressed Younger abstention only in cases where a state-court judicial proceeding is underway or already decided tells us nothing about whether the Eleventh Circuit does or would confine its use of the Younger doctrine to that procedural context, when so many of its sister courts have expanded it to embrace the very set of circumstances presented in this case.
For all of these reasons, the Court agrees with the Board that there is an ongoing state proceeding, inferred as a matter of law on a “unitary proceeding” theory, for Younger abstention purposes because plaintiffs could have obtained judicial review of the challenged disciplinary proceedings in Alabama’s juvenile courts, but chose to come to federal court instead.
3. The “Undue Interference” Requirement. Plaintiffs’ fallback position is that, even if ongoing state judicial proceedings are deemed to exist (as the Court has found), Younger abstention remains unwarranted because this action would not unduly interfere with the state proceedings. After careful consideration of the parties’ arguments, the Court agrees with plaintiffs that the “undue interference” prerequisite to abstention is not satisfied here. “[T]he Supreme Court has made clear that the [Younger] abstention doctrine is not triggered in a civil context unless the federal injunction requested would create an undue interference with state proceedings.” Green, 563 F.3d at 1251 (citation and internal quotation marks omitted); see also 31 Foster Children, 329 F.3d at 1276 (“we join our sister circuits in explicitly stating that an essential part of the first … factor in Younger abstention analysis is whether the federal proceeding will interfere with an ongoing state court proceeding. If there is no interference, then abstention is not required.”). The Eleventh Circuit has found the requisite quantum of interference to trigger Younger abstention when “plaintiffs are seeking relief that would interfere with the ongoing state … proceedings by placing decisions that are now in the
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hands of the state courts under the direction of the federal district court.” 31 Foster Children, 329 F.3d at 1278 (first factor satisfied where requested declaratory judgment and injunction would take responsibility for state’s child dependency proceedings away from state courts and place it under federal court control). “The relief sought need not directly interfere with an ongoing proceeding … in order for Younger abstention to be required.” Id. at 1276.
Plaintiffs argue that Younger abstention is inappropriate because this “undue interference” requirement is not satisfied here. In their view, nothing about the pendency of this federal § 1983 action would inhibit or prevent state courts from hearing any claims that plaintiffs may put before them, and no remedy contemplated in this case would culminate in federal oversight of or infringement on state court functions. The Board counters that the “undue interference” prerequisite to Younger abstention is satisfied here because “Duplicative Legal Proceedings Interfere With State Judicial Proceedings.” (Doc. 78, at 3.) In other words, defendant claims that the mere existence of duplication, by itself, is tantamount to undue interference.7 Unquestionably, the concern that duplicative legal proceedings might reflect negatively on state courts’ ability to resolve constitutional issues was an animating force behind the Younger doctrine.8 But duplication of proceedings does not constitute per se undue interference for purposes of the Younger doctrine. The Eleventh Circuit has made clear that “[t]he Younger doctrine does not require abstention merely because a federal plaintiff, alleging a constitutional violation in federal court, filed a claim under state law, in state court, on the same

7

Defendant makes this point explicit in its principal brief, wherein it argues as

follows: “[H]ad the Plaintiffs filed Petitions in Juvenile Court, they could have sought the

identical constitutional relief it now seeks [sic] in Federal Court. Thus, the decree being

requested by the Plaintiffs in the Federal proceedings inevitably would interfere with those

ongoing juvenile proceedings.” (Doc. 72, at 5-6 (internal marks and emphasis omitted).)

8

See, e.g., Village of DePue, Ill. v. Exxon Mobil Corp., 537 F.3d 775, 783 (7th Cir.

2008) (“The rule in Younger … is concerned with preventing duplicative legal proceedings …

and the negative implication that state courts are unable to enforce constitutional principles.”)

(citations and internal quotation marks omitted); Gilbertson v. Albright, 381 F.3d 965, 971-72 (9th Cir. 2004) (recognizing that Younger abstention is concerned with interference that “results

in duplicative legal proceedings, and can readily be interpreted as reflecting negatively upon the

state courts’ ability to enforce constitutional principles”) (citations and internal quotation marks omitted); Hayse v. Wethington, 110 F.3d 18, 20 (6th Cir. 1997) (noting that federal intervention

in state proceedings as to which appellate review has not been completed is “a direct aspersion

on the capabilities and good faith of state appellate courts”) (citation omitted).

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underlying facts.” Wexler, 385 F.3d at 1340. In Wexler, the district court did what the Board urges this Court to do here, to-wit: made a finding “that the relief sought by Appellants would directly interfere with the state proceeding: seemingly by potentially rendering moot the state proceeding.” Id. at 1341. The Eleventh Circuit reversed, reasoning that there was no undue interference inherent in the pendency of parallel state and federal proceedings because “[a] dispositive decision by either court does not offend the respectful relationship between state and federal courts, nor would it place the district court in the role of supervisor of state litigation or the state court.” Id.; see also NOPSI, 491 U.S. at 373 (“It is true, of course, that the federal court’s disposition of such a case may well affect, or for practical purposes pre-empt, a … statecourt action. But there is no doctrine that the availability or even the pendency of state judicial proceedings excludes the federal courts.”). Contrary to the Board’s argument, mere duplication of proceedings between federal and state courts does not constitute the sort of interference that suffices to show “undue interference” in a Younger abstention analysis.
Binding precedent is clear: The kind of interference that matters for Younger purposes is that which jeopardizes the comity between state courts and federal courts. Again, the basic function of this doctrine is that of “preventing federal courts from being the grand overseers of state courts and court-like administration.” Wexler, 385 F.3d at 1341; see also Joseph A. ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253, 1271 (10th Cir. 2002) (Younger abstention is designed to avoid “an ongoing federal audit of state … proceedings” or a decision that “would have the effect of a federal court telling a state court how to run an ongoing criminal prosecution”) (citations omitted). That is to say, the kind of interference with which Younger is concerned is not the possibility that a federal court might moot a pending state proceeding by beating a state court to the punch on an issue that is pending before both of them in parallel proceedings, but is rather the entry of federal rulings that “usurp the state courts’ ability to perform their judicial functions.” Wexler, 385 F.3d at 1341 (citations and internal quotation marks omitted). Thus, the bare existence of a parallel state action does not warrant Younger abstention “unless the requested federal relief would result in meticulous and burdensome federal oversight of state
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court or court-like functions.” Id. at 1340. This is not such a case; therefore, the “undue interference” requirement is not satisfied, and Younger abstention is unavailable.9 III. Conclusion.
Upon careful review of the relief requested by plaintiffs and the effect that such relief (if granted) would have on state court proceedings, the Court concludes that this action does not and would not have the effect of unduly interfering in state proceedings. The requested federal relief would not render federal courts the grand overseers of Alabama juvenile courts and court-like administration. It would not usurp state courts’ ability to perform their judicial functions. And it would not inevitably interfere with state court proceedings. Accordingly, the comity principles undergirding Younger abstention are not implicated here. Under these circumstances, this Court declines to apply that “extraordinary and narrow exception to the duty of a district court to adjudicate a controversy properly before it.” Green, 563 F.3d at 1251 (citations omitted). For all of these reasons, defendant’s Motion to Abstain and Dismiss (doc. 72) is denied.

9

In arguing otherwise, the Board would liken this case to 31 Foster Children v.

Bush via a conclusory statement that “Plaintiffs’ federal proceedings would interfere with the

state juvenile proceedings by fundamentally changing the disposition and oversight of children.”

(Doc. 72, at 6.) This case bears not even passing resemblance to 31 Foster Children. If

plaintiffs prevail on their federal constitutional claims, then the Board will be subject to a federal

injunction requiring it to provide written notice and a hearing to students before imposing long-

term suspensions. Neither this Court nor any other would be intruding on those proceedings in

individual cases, stripping state courts of their authority to decide them, or telling state courts

what to do. By contrast, in 31 Foster Children, the relief requested would have “tak[en] the

responsibility for a state’s child dependency proceedings away from state courts and put[] it

under federal court control.” 329 F.3d at 1279. Specifically, the requested declaratory and

injunctive relief would have effectively resulted in federal courts making approval and

amendment decisions concerning a particular child’s case plan, even though state law conferred

authority on state courts to approve, monitor and amend the plans. Id. at 1278. Moreover, the 31

Foster Children plaintiffs wanted “to have the district court appoint a panel and give it authority

to implement a systemwide plan to revamp and reform dependency proceedings in Florida, as

well as the appointment of a permanent children’s advocate to oversee that plan.” Id. at 1279.

The relief sought by plaintiffs in this case is far less intrusive than the sweeping shift of control

from state to federal courts that was contemplated in 31 Foster Children. More to the point, the

relief requested by plaintiffs here simply does not implicate the comity concerns that underlie the

Younger doctrine. Comity does not require that federal courts yield to state courts as a matter of

course whenever the same constitutional issue is presented to both. And nothing about the relief

sought here would constitute the kind of invasive, disruptive federal court oversight or

entanglement in state-court proceedings that constitutes undue interference.

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DONE and ORDERED this 30th day of August, 2012. s/ WILLIAM H. STEELE CHIEF UNITED STATES DISTRICT JUDGE
-13-

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

M.R., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

BOARD OF SCHOOL COMMISSIONERS )

OF MOBILE COUNTY,

)

)

Defendant.

)

PUBLISH CIVIL ACTION 11-0245-WS-C

ORDER This matter comes before the Court on Plaintiffs’ Motion for Class Certification (doc. 84). The Motion has been briefed, and the parties have been afforded a full opportunity to present evidence and argument in support of their respective positions on the class certification issue. The Motion is now ripe for disposition. I. Background. This putative class action is brought by seven Mobile County Public School System (“MCPS”) students against the Board of School Commissioners of Mobile County (the “Board”) alleging certain constitutional deprivations. All of the named plaintiffs have been long-term suspended (meaning that they were suspended for a period exceeding 10 consecutive school days) from the MCPS schools they attend. The well-pleaded factual allegations of the Amended Complaint state that these students were not given proper notice or a hearing by the Board before such suspensions were imposed. In plaintiffs’ view, the Fourteenth Amendment requires that “school administrators must provide students with notice and a fair hearing before punishing them with long-term suspensions” (doc. 91, ¶ 1), yet plaintiffs received no such procedural safeguards. Plaintiffs maintain that there is a “custom and practice of many school administrators in the MCPSS of long-term suspending students without first providing notice of proposed suspensions and hearings so that students and parents can challenge those suspensions.” (Id., ¶ 2.) The Amended Complaint alleges that this purported custom and practice violates students’ procedural due process rights guaranteed under the Fourteenth Amendment.

Significantly, the Amended Complaint specifies with crystalline clarity that plaintiffs do not seek an award of monetary damages. Rather, their “Prayer for Relief” is confined to declaratory and injunctive relief, including a declaration that the Board’s custom and practice of imposing long-term suspensions without notice and a hearing violate the procedural due process guarantees of the Fourteenth Amendment, as well as an injunction requiring the Board to provide written notice and a hearing before the imposition of long-term suspensions. (Doc. 91, at 38.) In other words, the seven named plaintiffs in this case are not asking for money, but are instead seeking an order from this Court obligating the Board to require schools to provide notice and a hearing before long-term suspensions are imposed in the MCPS system from this moment forward.1
The named plaintiffs do not proceed solely in their own names; rather, their pleadings make clear that they also purport to be bringing this action against the Board on behalf of a class of similarly situated students. In the “Class Allegations” section of the Amended Complaint, plaintiffs propose the following class definition: “All current and future MCPSS students who have been or may be suspended for more than ten consecutive school days (1) without being provided a written notice of proposed suspension (‘notice’), (2) without being provided a due process hearing attended by both the student and his/her parent/guardian (‘hearing’), or (3) without being provided both notice and hearing.” (Doc. 91, ¶ 288.) Plaintiffs have now moved for certification of this proposed class under the procedure prescribed by the Federal Rules of Civil Procedure. Defendant opposes class certification. II. Analysis.
A. Rule 23 Standard. Plaintiffs’ Motion for Class Certification is governed by the standards set forth in Rule 23, Fed.R.Civ.P. See Valley Drug Co. v. Geneva Pharmaceuticals, Inc., 350 F.3d 1181, 1187 (11th Cir. 2003) (explaining that Rule 23 furnishes “legal roadmap” which courts follow in

1

Plaintiffs reconfirm these intentions in filings in support of their Rule 23 Motion,

wherein they write the following: “Plaintiffs seek declaratory and injunctive remedies. They

request that the Court (1) declare that the due process procedures for long-term suspensions in

the 2010 Handbook violate the Fourteenth Amendment, and (2) grant equitable relief, including

requiring Defendant to provide both notice and hearing before imposing long-term suspensions,

and requiring Defendant to monitor and supervise compliance with due process requirements. …

Plaintiffs do not seek any money damages.” (Doc. 86, at 5.)

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assessing propriety of class certification). In that regard, the Eleventh Circuit has instructed that “[a] district court must conduct a rigorous analysis of the rule 23 prerequisites before certifying a class.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1266 (11th Cir. 2009) (citations omitted). Although this inquiry is not intended to be a preliminary adjudication of the merits,2 it is also true that “[f]requently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped.” Wal-Mart Stores, Inc. v. Dukes, --- U.S. ---, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011); see also Fisher v. Ciba Specialty Chemicals Corp., 238 F.R.D. 273, 296 (S.D. Ala. 2006) (“this Circuit’s jurisprudence recognizes that merits and Rule 23 issues are often intertwined, such that addressing Rule 23 criteria often requires some foray into the merits”).
“For a district court to certify a class action, the named plaintiffs must have standing, and the putative class must meet each of the requirements specified in Federal Rule of Civil Procedure 23(a), as well as at least one of the requirements set forth in Rule 23(b).” Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11th Cir. 2004) (footnote omitted); see also Valley Drug, 350 F.3d at 1188 (“Failure to establish any one of [the Rule 23(a)] factors and at least one of the alternative requirements of Rule 23(b) precludes class certification.”). It is well settled that “[t]he burden of proof to establish the propriety of class certification rests with the advocate of the class.” Valley Drug, 350 F.3d at 387; see also Vega, 564 F.3d at 1267 (“a plaintiff still bears the burden of establishing every element of Rule 23”); De Leon-Granados v. Eller and Sons Trees, Inc., 497 F.3d 1214, 1220 (11th Cir. 2007) (“A party seeking to maintain a class action bears the burden of demonstrating that class certification is proper.”).3 As such, it is plaintiffs’ responsibility to show that all of the prerequisites for class certification are satisfied here (i.e., that class certification is appropriate under Rule 23).

2

See, e.g., Morrison v. Booth, 763 F.2d 1366, 1371 (11th Cir. 1985) (concurring

with district court’s assessment that it “could not conduct a preliminary inquiry into the merits of

a suit in order to determine whether it may be maintained as a class action”); Fisher v. Ciba

Specialty Chemicals Corp., 238 F.R.D. 273, 296 (S.D. Ala. 2006) (“At this preliminary stage, the

Court may not pass on the merits of plaintiffs’ claims.”).

3

“Rule 23 does not set forth a mere pleading standard. A party seeking class

certification must affirmatively demonstrate his compliance with the Rule – that is, he must be

prepared to prove that there are in fact sufficiently numerous parties, common questions of law

or fact, etc.” Wal-Mart Stores, 131 S.Ct. at 2551.

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Here, the Motion for Class Certification may be resolved in its entirety by examination of the questions of standing and the Rule 23(b) factors. Accordingly, the analysis will focus on these particular issues as briefed in the parties’ class certification submissions.
B. Standing. As a threshold matter, the Board challenges whether plaintiffs have Article III standing to pursue their claims for injunctive and declaratory relief. In this Circuit, “it is well-settled that prior to the certification of a class, and technically speaking before undertaking any formal typicality or commonality review, the district court must determine that at least one named class representative has Article III standing to raise each class subclaim.” Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000); see also Murray v. U.S. Bank Trust Nat’l Ass’n, 365 F.3d 1284, 1288 n.7 (11th Cir. 2004) (“just as a plaintiff cannot pursue an individual claim unless he proves standing, a plaintiff cannot represent a class unless he has standing to raise the claims of the class he seeks to represent”).4 To establish standing to satisfy the “case or controversy” requirement for Article III purposes, a plaintiff must show that “(1) [he] has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1251 (11th Cir. 2012) (citations omitted). The critical issue here is whether plaintiffs have stated an injury in fact that is redressable by the relief they seek. Again, plaintiffs are not petitioning for a backward-looking award of money damages; rather, the sole requested relief consists of a declaration that the long-term suspension procedures outlined in the 2010 student handbook violate the Fourteenth Amendment, and a forward-looking injunction requiring the Board to provide students with notice and a hearing before imposing long-term suspensions henceforth.

4

“The existence of standing is crucial because we as a federal court are

constitutionally bound to only entertain arguments that we have been given the authority to

decide.” American Civil Liberties Union of Florida, Inc. v. Dixie County, Fla., 690 F.3d 1244, 1247 (11th Cir. 2012). “In the absence of standing, a court is not free to opine in an advisory

capacity about the merits of a plaintiff’s claims, and the court is powerless to continue.” Hollywood Mobile Estates Ltd. v. Seminole Tribe of Florida, 641 F.3d 1259, 1265 (11th Cir.

2011) (citation omitted).

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“In order to demonstrate that a case or controversy exists to meet the Article III standing requirement when a plaintiff is seeking injunctive or declaratory relief, a plaintiff must allege facts from which it appears there is a substantial likelihood that he will suffer injury in the future.” Malowney v. Federal Collection Deposit Group, 193 F.3d 1342, 1346 (11th Cir. 1999).5 No doubt, the named plaintiffs have extensively alleged a past injury (i.e., they were long-term suspended without being afforded the process that they claim is constitutionally due). “Injury in the past, however, does not support a finding of an Article III case or controversy when the only relief sought is a declaratory judgment.” Malowney, 193 F.3d at 1348. “This is so because logically, a prospective remedy will provide no relief for an injury that is, and likely will remain, entirely in the past.” Focus on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263, 1275 (11th Cir. 2003) (citations and internal marks omitted). Thus, “a prayer for injunctive and declaratory relief requires an assessment, at this stage in the proceeding, of whether the plaintiff has sufficiently shown a real and immediate threat of future harm. … [P]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief.” Elend v. Basham, 471 F.3d 1199, 1207 (11th Cir. 2006) (citations omitted).6 Given the type of relief

5

See also Williams v. Board of Regents of University System of Georgia, 477 F.3d

1282, 1302 (11th Cir. 2007) (“[b]ecause injunctions regulate future conduct, a party has standing

to seek injunctive relief only if the party alleges, and ultimately proves, a real and immediate – as

opposed to a merely conjectural or hypothetical – threat of future injury”) (citation omitted); Koziara v. City of Casselberry, 392 F.3d 1302, 1305 (11th Cir. 2004) (“For a plaintiff seeking

prospective relief to have standing, he must show a sufficient likelihood that he will be affected

by the allegedly unlawful conduct in the future.”) (citations and internal quotation marks omitted); Focus on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263, 1274 (11th

Cir. 2003) (“where a plaintiff seeks these types of prospective relief, it must demonstrate a real

and immediate threat of future injury to satisfy the injury in fact requirement”) (citations and

internal quotation marks omitted). As a broad proposition, the Supreme Court has observed that

“for purposes of assessing the likelihood that state authorities will reinflict a given injury, we

generally have been unwilling to assume that the party seeking relief will repeat the type of

misconduct that would once again place him or her at risk of that injury.” Honig v. Doe, 484

U.S. 305, 320, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988).

6

“The binding precedent in this circuit is clear that for an injury to suffice for

prospective relief, it must be imminent.” Elend, 471 F.3d at 1207; see also Bowen v. First

Family Financial Services, Inc., 233 F.3d 1331, 1340 (11th Cir. 2000) (observing that a “perhaps

or maybe chance” of an injury occurring is not enough for standing).

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they seek, the injury in fact that plaintiffs must show is a likelihood of future injury, not merely that they were long-term suspended without due process sometime in the past.
In response to the Board’s standing challenge, plaintiffs persuasively argue that they do, indeed, face a sufficient likelihood of future injury to satisfy the Article III standing test. “Article III standing must be determined as of the time at which the plaintiff’s complaint is filed.” Focus on the Family, 344 F.3d at 1275. The well-pleaded allegations of the Complaint (doc. 1) reflect that the Board-approved MCPS Student Handbook and Code of Conduct dated June 2010 (the “2010 Handbook”) applied to all plaintiffs and omitted any requirement that notice be given or that due process hearings be held prior to imposition of long-term suspensions. (Doc. 1, ¶¶ 38-44.) Plaintiffs have further alleged that all of them were long-term suspended without notice or a hearing. (Id., ¶ 1.) To rebut defendant’s argument that they face no realistic threat of future injury, plaintiffs make the following showing: (i) some 392 MCPS students received multiple long-term suspensions during the period of 2009 through 2012 (doc. 99, ¶ 4); (ii) of the 225 students who were long-term suspended between February 1, 2011 and March 31, 2012 without a notice letter or hearing, some 82 of them (or 36.4%) were long-term suspended more than once (doc. 99, ¶ 5); (iii) of the seven named plaintiffs, at least two (C.H. and G.H.) received multiple long-term suspensions without notice and a conference (doc. 91, ¶¶ 8-9); and (iv) one of those plaintiffs (C.H.) received a second long-term suspension without notice and a conference in April 2012, during the pendency of this very lawsuit (id., ¶ 8). In the aggregate, these facts demonstrate that long-term suspensions are recurring punishments meted out by the Board for recurring student misconduct, and that the Board’s failure to provide notice and hearing before imposing such suspensions is likewise a recurring phenomenon.
Plaintiffs’ showing establishes a sufficient likelihood of future harm to satisfy the standing threshold. Under applicable precedent, “the redressability requirement will usually be satisfied where there is evidence that the plaintiff is likely to encounter the same injurious conduct in the future.” Doe v. Kearney, 329 F.3d 1286, 1292 (11th Cir. 2003). How likely must “likely” be to give rise to Article III standing? The Eleventh Circuit has explained that “[t]o be likely enough, the threatened future injury must pose a ‘realistic danger’ and cannot be merely hypothetical or conjectural. How likely is enough is necessarily a qualitative judgment … and courts should look for guidance from precedent in the analogical style of the common law
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tradition.” Florida State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008) (citations omitted).
For example, in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), the plaintiff sought a permanent injunction against a municipal police department whose members had applied a “chokehold” on him without provocation or justification. The Supreme Court found no Article III standing, reasoning that “even assuming that Lyons would again be stopped for a traffic or other violation in the reasonably near future, … [w]e cannot agree that the ‘odds’ … that Lyons would not only again be stopped for a traffic violation but would also be subjected to a chokehold without any provocation whatsoever are sufficient to make out a federal case for equitable relief.” 461 U.S. at 108 (citation omitted). By contrast, in Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988), the Supreme Court found standing where the plaintiff was a disabled student who sought an injunction to prevent school officials from unilaterally removing him from the classroom for misconduct. The Court explained that “we think it reasonable to expect that [the student] will again engage in the type of misconduct that precipitated this suit” and that “[w]e think it equally probable that, should he do so, [the student] will again be subjected to the same unilateral school action for which he initially sought relief.” 484 U.S. at 321.
In a nutshell, then, “the relevant question is whether this case resembles Honig, where the Court found that a recurrence was sufficiently likely, or Lyons, where the Court held the risk of repeated injury to be too speculative.” Church v. City of Huntsville, 30 F.3d 1332, 1338 n.2 (11th Cir. 1994). Plaintiffs’ showing aligns this case more closely to the facts and circumstances presented in Honig than those found in Lyons. Indeed, their evidence is that significant numbers of MCPS students who are long-term suspended on one occasion without notice and hearing are subjected to later long-term suspensions, again without notice and hearing. That is, in fact, what happened to named plaintiff C.H., who was long-term suspended a second time without notice and hearing during the pendency of this lawsuit. Clearly, then, it is reasonable to conclude that one or more named plaintiffs are “likely to have another encounter with government officials of the kind which precipitated the complained of act.” Newsome v. Batavia Local School Dist., 842 F.2d 920, 923 (6th Cir. 1988). And plaintiffs’ evidence that MCPS officials continue to impose long-term suspensions without notice and hearing demonstrates that “the government ordered or authorized the act” for standing purposes. Id. In sum, plaintiffs have all been long-term
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suspended without notice and hearing before. They have shown a realistic danger that they will be long-term suspended without notice and hearing again in the future. The injury in fact and redressability prongs of Article III standing require nothing more.7
The Eleventh Circuit has opined on multiple occasions that “probabilistic harm is enough injury in fact to confer … standing in the undemanding Article III sense.” Florida State Conference, 522 F.3d at 1163 (citing Tennessee Valley Authority v. U.S. Environmental Protection Agency, 278 F.3d 1184, 1207 (11th Cir. 2002)) (internal quotation marks omitted). That is precisely what plaintiffs have shown here; therefore, the Court is of the opinion that a recurrence of the harm alleged by plaintiffs is sufficiently likely that it confers standing on them to pursue claims against the Board for injunctive and declaratory relief to require that future MCPS long-term suspensions be preceded by notice and a hearing.8

7

Two analogous decisions from the Eleventh Circuit support this conclusion. First,

in Church v. City of Huntsville, 30 F.3d 1332 (11th Cir. 1994), the plaintiffs were homeless

persons who sought an injunction barring a municipality from harassing or removing them

because of their homeless status. The Eleventh Circuit found that Church was closer to Honig

than to Lyons because the plaintiffs had alleged that (i) their involuntarily homeless status meant

that they could not avoid future exposure to the city’s policy of harassment and removal, and (ii)

the city had a custom, practice and policy of arresting, harassing and interfering with homeless

people for engaging in ordinary activities of daily life in public places. Id. at 1339. Second, in Doe v. Kearney, 329 F.3d 1286 (11th Cir. 2003), the plaintiffs were parents who sought to enjoin

enforcement of a Florida statute that authorized emergency removal of children. Although the

state had already temporarily removed the plaintiffs’ children under that statute before and such

removal would not necessarily occur again, the Eleventh Circuit found standing to be satisfied

because plaintiff John Doe had been investigated twice by Florida’s Department of Children and

Family Services as “fitting a pattern of sexual offenders,” such that “it seems reasonably likely

that [the plaintiffs] could encounter future state action under” the statute. Id. at 1293. If the

probabilistic harms at issue in Church and Doe were sufficient to support standing, then surely

those alleged by plaintiffs in this case (who have shown that a significant percentage of MCPS

students who have been long-term suspended without notice and a hearing receive subsequent

long-term suspensions without notice and a hearing, including at least one named plaintiff who

has been so affected during the pendency of this litigation) are adequate to satisfy the

undemanding Article III burden of showing standing.

8

In a footnote, the Board suggests in passing that plaintiffs do not have a likelihood

of future harm because the 2010 Handbook is “long moot.” (Doc. 96, at 3 n.1.) “[T]he doctrine

of mootness can be described as the doctrine of standing set in a time frame: The requisite

personal interest that must exist at the commencement of the litigation (standing) must continue

throughout its existence (mootness).” Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1189 n.16 (11th Cir. 2007) (citation omitted); see also National Ass’n of Boards of Pharmacy v.

(Continued)

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C. Need for Class Certification under Rule 23(b)(2). Notwithstanding the finding of Article III standing, plaintiffs are not entitled to class certification unless they “meet each of the requirements specified in Federal Rule of Civil Procedure 23(a), as well as at least one of the requirements set forth in Rule 23(b).” Klay, 382 F.3d at 1250. Assuming (without deciding) that plaintiffs have satisfied the Rule 23(a) factors, their bid for class certification nonetheless founders on the shoals of Rule 23(b). Plaintiffs’ Motion identifies subsection (b)(2) as the prong of Rule 23(b) in play here. That rule allows class certification if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Rule 23(b)(2), Fed.R.Civ.P.9 As the Supreme Court recently explained, “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction

Board of Regents of the University System of Georgia, 633 F.3d 1297, 1309 n.24 (11th Cir. 2011) (similar). If, in fact, plaintiffs’ claims were limited to seeking declaratory and injunctive relief that the now-superseded 2010 Handbook violated their procedural due process rights even though current MCPS custom, practice and policy do not, the Board might have a point. But plaintiffs have alleged that, notwithstanding the admitted language change in policies postdating the 2010 Handbook to provide for nominal inclusion of greater procedural safeguards, “there remains a persistent, widespread custom and practice of suspending students long-term without notice and/or hearing.” (Doc. 98, at 3.) Elsewhere, plaintiffs insist that “[t]he facts of this case demonstrate that Defendant has not made any meaningful effort to shift its actual conduct to reflect the revised policy.” (Id. at 7.) Simply put, this case is not confined to the 2010 Handbook, but instead extends to the Board’s current practices and customs, which plaintiffs contend remain unchanged and violative of their procedural due process rights, irrespective of whether the 2010 Handbook has been supplanted by a new, different iteration of the challenged written policy. On this record, then, defendant’s off-hand suggestion of mootness because the 2010 Handbook has been superseded is not meritorious.

9

See also M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 845 (5th Cir. 2012) (“We

have interpreted this language to create two relevant requirements when a proposed class seeks

classwide injunctive relief: (1) the class members must have been harmed in essentially the same

way …, and (2) the injunctive relief sought must be specific.”) (citations and internal quotation

marks omitted); Casa Orlando Apartments, Ltd. v. Federal Nat’l Mortg. Ass’n, 624 F.3d 185, 198 (5th Cir. 2010) (“a Rule 23(b)(2) inquiry requires considering two factors: 1) whether the

defendant’s behavior is generally applicable to the class as a whole, and 2) whether injunctive

relief predominates over monetary relief”).

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or declaratory judgment against the defendant.” Wal-Mart Stores, 131 S.Ct. at 2557; see also Gooch v. Life Investors Ins. Co. of America, 672 F.3d 402, 428 (6th Cir. 2012) (“The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted – the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or to none of them.”) (citations and internal quotation marks omitted). Plaintiffs maintain that Rule 23(b)(2) is satisfied here because the Board violated their Fourteenth Amendment rights pursuant to a custom or policy to which all potential class members are subject, such that they seek declaratory and injunctive relief with respect to the entire class.
Defendant counters that class certification under Rule 23(b)(2) is unnecessary here. After all, plaintiffs make clear that they seek “[a] single declaratory judgment by this Court that Defendant’s policy and custom violate the Fourteenth Amendment, or a single injunction permanently enjoining Defendant from failing to provide both notice and a hearing.” (Doc. 86, at 13.)10 The Board’s point, quite simply, is that it would be superfluous to certify a class here because, if plaintiffs prevail on the merits, their requested injunctive declaratory and injunctive relief would have precisely the same scope and effect regardless of whether a class is certified or not. In other words, the Board argues, if this Court were to enter an injunction requiring the Board to provide notice and a hearing before imposing long-term suspensions, and a judicial declaration that failure to provide such procedural safeguards violates the Fourteenth Amendment, plaintiffs and potential class members would benefit equally with or without the overlay of class certification.
In rejoinder, plaintiffs scoff that no such “need” requirement exists under Rule 23(b)(2), and that any attempt to engraft same onto the rules would be “plainly inconsistent with the Federal Rules.” (Doc. 98, at 13.) However, considerable authority demonstrates that, whether it is deemed a formal “requirement” or not, the necessity of the class mechanism to afford complete relief is a proper consideration in the Rule 23(b)(2) analysis. One prominent commentator has remarked that it is commonplace for “the vast majority of courts” evaluating Rule 23(b)(2) class certification to consider the necessity for class relief, and that “the need
10 Plaintiffs acknowledge that their claims are isolated to these narrow issues, indicating that “[t]he Court’s determination of the constitutionality of the challenged policy and practice will alone resolve the fundamental issues in this case.” (Doc. 86, at 9-10.)
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requirement now seems well-accepted as an appropriate consideration when certifying a Rule
23(b)(2) action.” 7A Charles Alan Wright et al., Federal Practice and Procedure § 1785.2 (3d
ed.). A survey of the case law reveals that this common-sense notion has resonated with many
federal courts, prompting them to deny class certification where the injunctive relief requested
would inure to the benefit of prospective class members whether a class was certified or not.11 In
11 See, e.g., Kansas Health Care Ass’n, Inc. v. Kansas Dep’t of Social and Rehabilitation Services, 31 F.3d 1536, 1548 (10th Cir. 1994) (“This court has recognized the line of authority indicating that a class certification is unnecessary if all the class members will benefit from an injunction issued on behalf of the named plaintiffs. … We think it clear that that is the case here.”) (citations and internal quotation marks omitted); Dionne v. Bouley, 757 F.2d 1344, 1356 (1st Cir. 1985) (“We agree with those circuits which deny Rule 23(b)(2) certification where it is a formality or otherwise inappropriate. … [W]hen the same relief can be obtained without certifying a class, a court may be justified in concluding that class relief is not appropriate.”) (citation and internal quotation marks omitted); Casale v. Kelly, 257 F.R.D. 396, 406 (S.D.N.Y. 2009) (“certification of a Rule 23(b)(2) class is unnecessary when prospective relief will benefit all members of a proposed class to such an extent that the certification of a class would not further the implementation of the judgment”) (citation and internal quotation marks omitted); Healey v. Murphy, 2009 WL 6613209, *8 (D. Mass. Jan. 14, 2009) (rejecting Rule 23 motion where “[i]f those claims are successful, any injunctive or declaratory relief will inure to the benefit of all individuals who are currently confined at the facility. Thus, class certification is not necessary ….”); Arnett v. Strayhorn, 515 F. Supp.2d 690, 698 (W.D. Tex. 2006) (“No useful purpose would be served by requiring this case to proceed as a class because all individuals who are not a part of this action, but who are aggrieved by the Texas Unclaimed Property Law in the same manner as Plaintiff, will have the benefit of this Court’s ruling concerning the statute’s constitutionality.”); Access Now Inc. v. Walt Disney World Co., 211 F.R.D. 452, 455 (M.D. Fla. 2001) (“Finally, the Court finds that class certification in this action is unnecessary. The Plaintiffs are only seeking injunctive relief which, if granted, would necessarily benefit all other potential class members.”); Sokol v. New United Mfg., Inc., 1999 WL 1136683, *6 (N.D. Cal. Sept. 20, 1999) (“the Court declines to certify a class based only on these two policies [that are uniformly applied] because the class vehicle is not necessary to obtain the relief sought”); Bacal v. Southeastern Pennsylvania Transp. Authority, 1995 WL 299029, *5 (E.D. Pa. May 16, 1995) (observing the “lack of need approach to Rule 23(b)(2) which has been used by a number of courts of appeals” and explaining that “this approach allows district courts to deny class certification if that certification is not needed in order for plaintiffs to obtain the desired class-wide relief”); Hall v. Burger King Corp., 1992 WL 372354, *11-12 (S.D. Fla. Oct. 26, 1992) (rejecting class certification under Rule 23(b)(2) on ground that “class certification is unnecessary when an individual can obtain injunctive or declaratory relief which would benefit the other class members because the relief ordered in connection with an individual’s claim or action insofar as the Court may direct the defendant to make changes of such criteria or practices would of necessity inure to the benefit of others”) (citation and internal quotation marks omitted).
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the typical case, the district court weighs the benefits (if any) of class certification under Rule 23(b)(2) against the inherent burdens associated with transforming ordinary litigation into a class action. Where the members of the proposed class would benefit from the relief sought by the individual plaintiffs even if no class were certified, those courts often find that the burdens outweigh the benefits and that class certification is properly denied as inappropriate. See, e.g., Ruiz v. Robinson, 2012 WL 3278644, *2 (S.D. Fla. Aug. 9, 2012) (opining that the “vast majority of courts” view need “as an appropriate consideration” in Rule 23(b)(2) actions and finding that “the expense, due process considerations, and burden of maintaining a class action outweigh granting class certification” where, as here, the requested injunctive and declaratory relief “would equally benefit all members of the putative class”) (citations and internal quotation marks omitted); Mills v. District of Columbia, 266 F.R.D. 20, 22-23 (D.D.C. 2010) (explaining that courts have broad discretion in deciding whether to allow a case to proceed as a class action, that “[o]ne factor that courts often consider is whether there is a need for class certification,” that “it is not uncommon for courts, in exercising their discretion, to deny class certification on that basis,” that the relief sought by plaintiffs in facial challenge to program’s constitutionality would afford sufficient protection all proposed class members, and that “the Court fails to see what would be achieved by certifying the proposed classes other than to needlessly burden this litigation”); Access Now Inc. v. Walt Disney World Co., 211 F.R.D. 452, 455 (M.D. Fla. 2001) (“The complexity and expense of a class action is not necessary in this case as the Plaintiffs may achieve by injunction all relief which would inure to similarly situated persons without the necessity of class certification.”).
The Eleventh Circuit has never expressly stated whether it recognizes a necessity requirement in the Rule 23(b)(2) analysis. However, the clear majority rule is that “need” is a proper consideration (even if not technically a “requirement” for class certification), and that class certification may be properly denied where a class is unnecessary to obtain the full measure of relief sought, such that it is not appropriate to bog down the litigation with the expense, delay, complexity and burden of class certification when there is no corresponding benefit to implementation of the resulting judgment.12 More importantly, binding precedent lends strong
12 As noted previously, Wright & Miller opine that the “vast majority” of federal courts do consider necessity in the Rule 23(b)(2) context. Even commentators who express (Continued)
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support to the notion that it is appropriate for district courts to consider the benefits and burdens
in making a Rule 23(b)(2) certification decision, and to deny class certification where those
benefits are insubstantial. In particular, the old Fifth Circuit wrote as follows: “We find it
unnecessary to determine the answer to this [class certification] question, however, for whether
or not appellants are entitled to class action treatment, the decree to which they are entitled is the
same. … [T]he very nature of the rights appellants seek to vindicate requires that the decree run
to the benefit not only of the named plaintiffs but also for all persons similarly situated. … Even
with the denial of class action status, the requested injunctive and declaratory relief will benefit
not only the individual appellants and the nonprofit corporation but all other persons subject to
the practice under attack.” United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, Florida, 493 F.2d 799, 812 (5th Cir. 1974).13 In other words, the United
hostility to the necessity analysis begrudgingly admit that (i) “[a]s of 2012, courts in six circuits have applied some version of the necessity analysis, … holding that because an individual case could secure class-wide injunctive relief, class certification was unnecessary,” (ii) additionally, there is “one circuit [that] has rejected a formal necessity requirement” while still recognizing that it may be appropriate to weigh necessity as part of the Rule 23(b)(2) “appropriateness” analysis, and (iii) “courts in three other circuits” have rejected the requirement altogether. 2 William B. Rubenstein, Newberg on Class Actions § 4:35 (5th ed.). Thus, even by Newberg’s tally, the circuit score is no worse than 7 – 3 in favor of the propriety of denying Rule 23(b)(2) class status when the same relief can be obtained without certifying a class, at least in the absence of countervailing considerations.
13 Plaintiffs understandably seek to minimize the harmful impact of United Farmworkers on their Rule 23 Motion. In that regard, they point to the Fifth Circuit’s comment in a footnote seven years later that “[t]his Court has not confronted the question directly” of whether a need requirement exists. Johnson v. City of Opelousas, 658 F.2d 1065, 1070 n.5 (5th Cir. 1981). However, Johnson furnishes little solace to plaintiffs because (i) it was decided after October 1, 1981, and is therefore not binding in the Eleventh Circuit; (ii) that same footnote recited decisions from a half-dozen jurisdictions that have adopted a “need” rationale and only one (the Seventh Circuit) that has rejected it, such that even Johnson seemed to acknowledge the clear majority view; and (iii) notwithstanding that the procedural posture of the case meant that the issue was not presented “directly” in United Farmworkers, that decision’s language and reasoning unambiguously echo the line of authorities that have recognized a “need” factor in the Rule 23(b)(2) analysis. To that last point, the United Farmworkers panel reasoned that the class certification ruling was inconsequential because the requested injunction and declaration would inure to the benefit of all similarly situated persons either way. This mode of thinking is the rallying cry of courts that have declined to certify classes under Rule 23(b)(2) where putative class members stand to benefit from the requested injunction even if the expensive, time(Continued)
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Farmworkers court found that it did not matter whether the case should have been certified as a class action, because relief granted to the individual plaintiffs would necessarily inure to the benefit of potential class members. This is precisely the Board’s point in the case at bar.
Recall that in the Amended Complaint, plaintiffs request a declaration that the Board’s custom and practice of imposing long-term suspensions without notice and a hearing “violate the procedural due process guarantees of the Fourteenth Amendment,” as well as an injunction requiring the Board to provide written notice and a hearing before imposing such suspensions. (Doc. 91, at 38.) So what plaintiffs seek is a judicial determination that the Board’s practice of suspending students on a long-term basis without notice and a hearing violates due process, and an order that the Board provide such procedural safeguards henceforth. Those remedies would be identical whether this action is certified as a class action under Rule 23(b)(2) or not. They would inure to the benefit of current and future MCPS students, whether those students are labeled members of a class or not. Tellingly, plaintiffs do not argue otherwise. It is therefore an uncontroverted and apparently uncontested point that the same result could be achieved by individual litigation that would occur using the Rule 23 mechanism.
In light of these circumstances, what then would be the point of invoking the burdensome machinery of class certification in this case? See Bond v. Dentzer, 325 F. Supp. 1343, 1352 (N.D.N.Y. 1971) (“It makes me wonder at times why the complexities of Federal Rule of Procedure 23 are entered into when the declaration of unconstitutionality for one would, or at least should, in effect proclaim unconstitutionality for all ….”). Without question, there may be cases where the “all-for-one, one-for-all” nature of the injunctive relief sought may not warrant denial of class certification because of other extenuating circumstances. See, e.g., Dionne v. Bouley, 757 F.2d 1344, 1356 (1st Cir. 1985) (reciting examples of when class certification may be proper even when the same relief could be obtained without certifying a class); Wright, supra, at § 1785.2 (recognizing possibility that, in a particular case, “even if the ultimate judgment in an individual action would benefit all affected by defendant’s conduct, there [may be] other reasons that support the need for class relief”). Notably missing from plaintiffs’ filings, however, is any
consuming and burdensome machinery of class certification is not activated. So whether it “confronted the question directly” or not, United Farmworkers provides a compelling insight into where the sympathies of the appellate court lie.
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identification of such factors or circumstances that might favor class treatment in this case even though the same relief could, for all practical purposes, be obtained through an individual injunction.14
The point is straightforward: By the express terms of Rule 23(b)(2), a plaintiff seeking class certification under that subsection must show that “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Id.; see also Dionne, 757 F.2d at 1356 (“whether the action should be maintained as a class action depends on the appropriateness of injunctive or corresponding declaratory relief with respect to the class as a whole”). Class-based relief is not appropriate here. An injunction for the individual plaintiffs would amount to exactly the same relief as an injunction for an entire class because the decree sought by those plaintiffs would, by its very nature, “run to the benefit not only of the named plaintiffs but also for all other persons similarly situated.” United Farmworkers, 493 F.2d at 812. What’s more, plaintiffs have identified no other reasons that might warrant class-based relief in this case. On the other side of the equation, proceeding here as a class action would yield inefficiencies and complexities that would needlessly burden litigant and judicial resources alike, all for the sake of obtaining a class injunction that would be identical in scope, breadth and effect to an individual injunction awarded in favor of the individual plaintiffs alone. Plaintiffs have made no showing or argument to the contrary.
14 At best, plaintiffs proffer a vague assertion that “[i]ncluding all injured students in this litigation will ensure that all appropriate discovery can be taken – and that adjudication of Plaintiffs’ claims and requested remedies is based on a robust factual record.” (Doc. 98, at 14.) Plaintiffs do not elaborate, leaving the Court guessing as to how discovery would be impaired or the factual record deprived of “robustness” in the absence of Rule 23 certification. If plaintiffs are insinuating that the MCPS custom and practice works differently at different schools, such that discovery is needed at schools other than those attended by the named plaintiffs, that point would appear to undermine the commonality and typicality elements required by Rule 23(a). At any rate, all of the named plaintiffs have alleged that they were long-term suspended without hearing and notice, and that they remain vulnerable to future long-term suspensions without hearing and notice under the current MCPS custom and practice. Those facts, if proven at trial, would appear to support the injunctive and declaratory relief sought by plaintiffs, without the need to delve into much broader class-based discovery of the sort apparently envisioned by plaintiffs. In fact, avoiding the expansive discovery that accompanies class certification – where such discovery is unnecessary – is precisely the sort of circumstance that favors denial of Rule 23 status if the same relief could be obtained via individual injunction without utilizing the cumbersome class action machinery.
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Under these circumstances, regardless of whether the Eleventh Circuit would recognize a formal “necessity requirement” or not, this Court is persuaded to exercise its discretion15 against certifying a class because final injunctive relief or declaratory relief would not be appropriate with respect to the class as a whole for Rule 23(b)(2) purposes. For aught that movants have shown, certifying a class here would multiply the workload, complexity, burdens and attorney’s fees for the parties with no countervailing benefit to implementation of the judgment, given that the relief requested would inure to the benefit of similarly situated students even if they are not classified as class members. Plaintiffs have neither contested that the ultimate judgment in an individual action would benefit all affected by the Board’s alleged conduct even without class certification, nor identified other reasons that support the need for class relief. Thus, plaintiffs have not met their “burden of demonstrating that class certification is proper.” De LeonGranados, 497 F.3d at 1220. III. Conclusion.
For all of the foregoing reasons, plaintiffs’ Motion for Class Certification (doc. 84) is denied.
DONE and ORDERED this 29th day of October, 2012.
s/ WILLIAM H. STEELE CHIEF UNITED STATES DISTRICT JUDGE
15 See generally Fitzpatrick v. General Mills, Inc., 635 F.3d 1279, 1282 (11th Cir. 2011) (district court’s class certification order is reviewed for abuse of discretion and will not be disturbed as long as district court’s reasoning stays within parameters of Rule 23); De LeonGranados v. Eller and Sons Trees, Inc., 497 F.3d 1214, 1218 (11th Cir. 2007) (“Questions concerning class certification are left to the sound discretion of the district court.”) (citation omitted).
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CLOSED2013,MEDIATION,SCHEDO
U.S. District Court Southern District of Alabama (Mobile) CIVIL DOCKET FOR CASE #: 1:11-cv-00245-WS-C

M.R. et al v. Board of School Commissioners of Mobile County Date Filed: 05/12/2011

et al

Date Terminated: 06/10/2013

Assigned to: Chief Judge William H. Steele

Jury Demand: None

Referred to: Magistrate Judge William E. Cassady

Nature of Suit: 440 Civil Rights: Other

Cause: 42:1983 Civil Rights Act

Jurisdiction: Federal Question

Plaintiff
M.R. by and through his next friend, Mary Simmons

represented by Christopher J. Herring 1875 Pennsylvania Ave. NW Washington, DC 20006 202-663-6780 Email: christopher.herrling@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher M. Straw Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston, MA 02109 617-526-6156 Email: christopher.straw@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED

Jadine Caroline Johnson 400 Washington Ave. Montgomery, AL 36104 334-956-8432 Email: jadine.johnson@splcenter.org ATTORNEY TO BE NOTICED

Jason H. Liss 60 State Street Boston, MA 02109 617-526-6000 Email: jason.liss@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED

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Joseph J. Mueller 60 State Street Boston, MA 02109 617-526-6396 Email: joseph.mueller@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED

Levi John Giovanetto 1875 Pennsylvania Ave NW Washington, DC 20006 309-202-2321 Email: levi.giovanetto@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED

Maria V. Morris 400 Washington Ave. Montgomery, AL 36104 334-956-8200 Email: maria.morris@splcenter.org ATTORNEY TO BE NOTICED

Marion Dawn Chartoff 400 Washington Ave. Montgomery, AL 36104 334-956-8352 Email: marion.chartoff@splcenter.org TERMINATED: 09/20/2012 ATTORNEY TO BE NOTICED

Sumit Mallick 1875 Pennsylvania Ave NW Washington, DC 20006 202-663-6417 Email: sumit.mallick@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
K.S. by and through his next friend, Rhonda

Yin Zhou 60 State Street Boston, MA 02109 617-526-6127 Email: yin.zhou@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher J. Herring (See above for address)

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Stewart

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PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher M. Straw (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jadine Caroline Johnson (See above for address) ATTORNEY TO BE NOTICED
Jason H. Liss (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph J. Mueller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Levi John Giovanetto (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED

Marion Dawn Chartoff (See above for address) TERMINATED: 09/20/2012 ATTORNEY TO BE NOTICED

Sumit Mallick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
D.M. by and through his next friend, Pinkie Manassa

Yin Zhou (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher J. Herring (See above for address) PRO HAC VICE

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ATTORNEY TO BE NOTICED

Christopher M. Straw (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jadine Caroline Johnson (See above for address) ATTORNEY TO BE NOTICED

Jason H. Liss (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph J. Mueller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Levi John Giovanetto (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED

Marion Dawn Chartoff (See above for address) TERMINATED: 09/20/2012 ATTORNEY TO BE NOTICED

Sumit Mallick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
S.A. by and through his next friend, Michelle Manassa

Yin Zhou (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher J. Herring (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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Christopher M. Straw (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jadine Caroline Johnson (See above for address) ATTORNEY TO BE NOTICED

Jason H. Liss (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph J. Mueller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Levi John Giovanetto (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED

Marion Dawn Chartoff (See above for address) TERMINATED: 09/20/2012 ATTORNEY TO BE NOTICED

Sumit Mallick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
J.C. by and through his next friend, Alicia Campbell TERMINATED: 08/28/2012

Yin Zhou (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher J. Herring (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jadine Caroline Johnson

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(See above for address) ATTORNEY TO BE NOTICED

Jason H. Liss (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph J. Mueller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Levi John Giovanetto (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED

Marion Dawn Chartoff (See above for address) TERMINATED: 09/20/2012 ATTORNEY TO BE NOTICED

Sumit Mallick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
E.M. by and through his next friend, Michelle Manassa

Yin Zhou (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher J. Herring (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher M. Straw (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jadine Caroline Johnson (See above for address)

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ATTORNEY TO BE NOTICED
Jason H. Liss (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph J. Mueller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Levi John Giovanetto (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED

Marion Dawn Chartoff (See above for address) TERMINATED: 09/20/2012 ATTORNEY TO BE NOTICED

Sumit Mallick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
C.H. by and through next friend, Margaret Hobson

Yin Zhou (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jadine Caroline Johnson (See above for address) ATTORNEY TO BE NOTICED
Jason H. Liss (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph J. Mueller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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Plaintiff G.H. by and through next friend, Emma Irby

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Levi John Giovanetto (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 09/20/2012 ATTORNEY TO BE NOTICED
Sumit Mallick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Yin Zhou (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher M. Straw (See above for address) ATTORNEY TO BE NOTICED
represented by Jadine Caroline Johnson (See above for address) ATTORNEY TO BE NOTICED
Jason H. Liss (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph J. Mueller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Levi John Giovanetto (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 09/20/2012 ATTORNEY TO BE NOTICED

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Sumit Mallick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Yin Zhou (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher M. Straw (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Board of School Commissioners of Mobile County

represented by Frank G. Taylor The Atchison Firm, P.C. 3030 Knollwood Dr. Mobile, AL 36693 (334) 665-7200 Fax: 2516657250 Email: frank.taylor@atchisonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

K. Paul Carbo , Jr. The Atchison Firm 3030 Knollwood Drive Mobile, AL 36693 (334) 665-7200 Fax: 2516657250 Email: paul.carbo@atchisonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Derek Atchison The Atchison Firm, PC 3030 Knollwood Drive Mobile, AL 36693 (251) 665-7200 Email: derek.atchison@atchisonlaw.com ATTORNEY TO BE NOTICED

Defendant
Jerome Woods TERMINATED: 07/18/2012

represented by Frank G. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Mark S. Boardman Boardman, Carr & Hutcheson, P.C. 400 Boardman Dr. Chelsea, AL 35043-8211 (205)678-8000 Fax: 2056780000 Email: mboardman@boardmancarr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clay Richard Carr Boardman, Carr & Hutcheson, P.C. 400 Boardman Dr. Chelsea, AL 35043-8211 (205)678-8000 Fax: 205-678-0000 Email: ccarr@boardmancarr.com ATTORNEY TO BE NOTICED
Dana Bolden Hill Boardman, Carr & Hutcheson, P.C. 400 Boardman Dr. Chelsea, AL 35043-8211 (205)678-8000 Fax: (205)678-0000 Email: dhill@boardmancarr.com ATTORNEY TO BE NOTICED
James Derek Atchison (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kirven Lang TERMINATED: 07/18/2012

represented by Frank G. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark S. Boardman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clay Richard Carr (See above for address) ATTORNEY TO BE NOTICED

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Dana Bolden Hill (See above for address)
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Defendant Jason D. Laffitte TERMINATED: 07/18/2012

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ATTORNEY TO BE NOTICED
James Derek Atchison (See above for address) ATTORNEY TO BE NOTICED
represented by Frank G. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark S. Boardman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clay Richard Carr (See above for address) ATTORNEY TO BE NOTICED
Dana Bolden Hill (See above for address) ATTORNEY TO BE NOTICED
James Derek Atchison (See above for address) ATTORNEY TO BE NOTICED

V.
Mediator
Michael E. Upchurch Frazer, Greene, Upchurch & Baker LLC P. O. Box 1686 Mobile, AL 36633 (334) 431-6020

represented by Michael E. Upchurch Frazer, Greene, Upchurch & Baker LLC P. O. Box 1686 Mobile, AL 36633 (334) 431-6020 Email: meu@frazergreene.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Paul R. Cook, III

represented by Paul R. Cook, III 6504 Buggy Whip Court Mobile, AL 36695 PRO SE

Movant Vickie M. Cook

represented by Vickie M. Cook

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Movant Heather Lucas Movant Felecia Nelson 720 Elba Avenue Whistler, AL 36612 Movant Deneka Marcel
Movant Gwenaver Mullins
Movant Leslie Louden
Movant Pamela P. Ladd
Movant Velda Nixon 1861 Jones Ave. Mobile, AL 36617

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6504 Buggy Whip Court Mobile, AL 36695 PRO SE
represented by Deneka Marcel PRO SE
represented by Gwenaver Mullins 1417 Azalea Rd, #13-F Mobile, AL 36693 251-602-5841 PRO SE
represented by Leslie Louden 5258 Woodmere St. Mobile, AL 36693 251-689-7319 PRO SE
represented by Pamela P. Ladd 2163 Mimosa Drive Mobile, AL 36617 PRO SE

Date Filed 05/12/2011
05/12/2011

# Docket Text
1 COMPLAINT against All Plaintiffs ( Filing fee $350 receipt number 11281092315, Online Credit Card Payment), filed by M.R., K.S., D.M., S.A., J.C., E.M.. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Civil Cover Sheet) (Chartoff, Marion) (Entered: 05/12/2011)
2 Summons Issued as to Board of School Commissioners of Mobile County, Jason D.

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05/12/2011 05/23/2011
05/23/2011 06/06/2011 06/08/2011 07/18/2011 07/18/2011 07/25/2011 07/28/2011
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Laffitte, Kirven Lang, Jerome Woods..... Note to Counsel: The Summons have been issued. Please print copies necessary for service. (tgw) (Entered: 05/12/2011)
3 Service Order entered 5/12/2011. Plaintiff to notify the Court the action taken to effect service and the results thereof. Service order deadline set to 6/27/2011. Signed by Chief Judge William H. Steele on 5/12/2011. (tgw) (Entered: 05/12/2011)
4 SUMMONS Returned Executed by M.R., K.S., D.M., S.A., J.C., E.M. Board of School Commissioners of Mobile County served 5/20/11; Jason D. Laffitte served 5/17/11; Kirven Lang served 5/17/11; Jerome Woods served 5/17/11. (Chartoff, Marion) Modified on 5/24/2011 (tgw). (Entered: 05/23/2011)
5 MOTION to Certify Class by D.M., E.M., J.C., K.S., M.R., S.A.. (Chartoff, Marion) (Entered: 05/23/2011)
6 ANSWER to 1 Complaint, by Board of School Commissioners of Mobile County, Jason D. Laffitte, Kirven Lang, Jerome Woods. (Taylor, Frank) (Entered: 06/06/2011)
7 PRELIMINARY SCHEDULING ORDER entered. Rule 26 Meeting Report due by 7/25/2011. Signed by Magistrate Judge William E. Cassady on 6/8/2011. (Attachments: # 1 Consent Form) (tgw) (Entered: 06/08/2011)
8 NOTICE of Appearance by Mark S. Boardman on behalf of Jason D. Laffitte, Kirven Lang, Jerome Woods (Boardman, Mark) (Entered: 07/18/2011)
9 NOTICE of Appearance by Dana Bolden Hill on behalf of Jason D. Laffitte, Kirven Lang, Jerome Woods (Hill, Dana) (Entered: 07/18/2011)
10 REPORT of Rule 26(f) Planning Meeting. (Taylor, Frank) (Entered: 07/25/2011)
11 SCHEDULING ORDER: Pretrial Conference set for 1/15/2013 09:00 AM in Chambers before Chief Judge William H. Steele. Amended Pleadings due by 2/1/2012. Discovery cutoff 8/16/2012. Motions due by 9/17/2012. Non-Jury Trial to be set during the month of February 2013. Position Regarding Settlement due by 8/16/2012. Signed by Magistrate Judge William E. Cassady on 7/28/2011. (Attachments: # 1 Standing Pretrial Order) (tgw) (Entered: 07/28/2011)
12 Order denying 5 MOTION to Certify Class filed by D.M., K.S., E.M., J.C., S.A., M.R.. Any motion bearing on the issue of class action certification shall be filed by 1/31/2012. Defendants' response(s) to the class certification motion shall be filed by 2/28/2012. Replies due by 3/14/2012. By 3/19/2012, the parties to deliver to the undersigned's chambers a complete set of hard copies of their electronically filed briefs and exhibits on class certification. Class Action Hearing set for 4/5/2012 at 09:00 AM in US Courthouse, Courtroom 2A, 113 St. Joseph Street, Mobile, AL 36602 before Chief Judge William H. Steele. Signed by Chief Judge William H. Steele on 7/28/2011. copies to parties (sdb) (Entered: 07/29/2011)

10/13/2011

13 Joint MOTION for Protective Order by Board of School Commissioners of Mobile County, D.M., E.M., J.C., K.S., Jason D. Laffitte, Kirven Lang, M.R., S.A., Jerome Woods. (Attachments: # 1 Text of Proposed Order) (Chartoff, Marion) (Entered: 10/13/2011)

10/13/2011

14 PROTECTIVE ORDER. Signed by Magistrate Judge William E. Cassady on 10/13/2011. (tgw) (Entered: 10/14/2011)

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15 Notice of Filing First Interrogatories filed by Board of School Commissioners of Mobile County. (Taylor, Frank) (Entered: 10/18/2011)
16 Notice of Filing Request for Production filed by Board of School Commissioners of Mobile County. (Taylor, Frank) (Entered: 10/18/2011)
17 Notice of Filing Interrogatories filed by Board of School Commissioners of Mobile County. (Taylor, Frank) (Entered: 10/19/2011)
18 MOTION to Quash Subpoena for school records by Paul R. Cook, III, Vickie M. Cook. Referred to Judge William E. Cassady. (tgw) (Entered: 10/25/2011)
19 MOTION to Quash Subpoena for school records by Heather Lucas. Referred to Judge William E. Cassady. (tgw) (Entered: 10/25/2011)
20 MOTION to Quash Subpoena for school records by Felecia Nelson. Referred to Judge William E. Cassady. (tgw) (Entered: 10/25/2011)
21 MOTION to Quash by Deneka Marcel. Referred to Judge William E. Cassady. (tgw) (Entered: 10/25/2011)
22 MOTION to Quash by Gwenaver Mullins. Referred to Judge William E. Cassady. (tgw) (Entered: 10/25/2011)
23 Objection to subpoena for school records filed by Leslie Louden. (tgw) (Entered: 10/25/2011)
24 MOTION to Quash by Pamela P. Ladd. Referred to Judge William E. Cassady. (tgw) (Entered: 10/25/2011)

10/26/2011

25 Order entered that MCPSS shall not release to the plaintiffs any information sought by the subject subpoena(s)that MCPSS believes is protected under FERPA untilfurther order of this Court; Consistent with its letter quoted from above, going forward, MCPSS shall inform all parents wishing to file an objection to lodge it with MCPSS instead of filing it with the Court.5 These objections shall be preserved by MCPSS and provided to the Court and the plaintiffs as ordered by the Court in the future; The plaintiffs shall, no later than November 2, 2011, submit a response to this order as further set out. MCPSS shall, no later than November 2, 2011, submit a response to thisorder as further set out. Once the Court receives this information, it will issue an order setting this matter for a hearing. That order may include an opportunity for the parties to provide briefing to the Court in advance of that hearing. Signed by Magistrate Judge William E. Cassady on 10/26/2011. (mbp) (Entered: 10/26/2011)

10/26/2011

28 MOTION to Quash Subpoena by Velda Nixon. Referred to Judge William E. Cassady. (tgw) (Entered: 11/07/2011)

11/01/2011

26 RESPONSE TO ORDER re: 25 Order,,, by Board of School Commissioners of Mobile County filed by Board of School Commissioners of Mobile County. (Taylor, Frank) (Entered: 11/01/2011)

11/02/2011

27 RESPONSE TO ORDER re: 25 Order,,, by D.M., E.M., J.C., K.S., M.R., S.A. filed by D.M., E.M., J.C., K.S., M.R., S.A.. (Attachments: # 1 Exhibit Attachment A, # 2 Exhibit Attachment B, # 3 Exhibit Attachment C, # 4 Exhibit Attachment D, # 5 Exhibit Attachment E, # 6 Exhibit Attachment F, # 7 Exhibit Attachment G, # 8

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Exhibit Attachment H) (Johnson, Jadine) (Entered: 11/02/2011)
29 Order re: the parties' responses (Docs. 26 & 27) to the Court's October 26 Order. The defendants are ordered by 11/18/2011 to respond to plaintiffs' 27 motion to modify the Court's October 26 Order. Replies due by 11/28/2011. This matter is set for a hearing on 12/1/2011 10:00 AM in Courtroom 3A. Signed by Magistrate Judge William E. Cassady on 11/4/2011. (tgw) (Entered: 11/07/2011)
30 Joint MOTION to Amend Scheduling Order 11 Scheduling Order, 12 Order by All Plaintiffs. (Attachments: # 1 Attachment, # 2 Attachment) (Chartoff, Marion) Modified on 11/23/2011 (tgw). (Entered: 11/23/2011)
31 Notice of Filing Deposition Notice filed by M.R.. (Chartoff, Marion) (Entered: 11/28/2011)
32 Notice of Filing Served Non-Party Subpoena, 1st Int, and Intl Discl filed by M.R.. (Chartoff, Marion) (Entered: 11/28/2011)
33 SUPPLEMENTAL SCHEDULING ORDER AND ORDER REGARDING FERPA OBJECTIONS PROTOCOL: The mailing of the revised notices shall be completed by 12/8/2011. Parents may assert objections by 12/22/2011. The Board shall provide the plaintiffs and the Court with the written objections to the revised notices by 12/29/2011. A Hearing on the objections is set for 1/5/2012 10:00 AM in Courtroom 3A. Discovery cutoff 11/16/2012 (as set out). Settlement Position due by 11/16/2012. Amended Pleadings due by 5/1/2012. Motions due by 12/17/2012. Pretrial Conference set for 4/16/2013 09:00 AM in Chambers before Chief Judge William H. Steele. This non-jury action will be set for trial during the month of May 2013. Class Certification Motions due by 5/1/2012, with Responses due by 6/1/2012 & Replies due by 6/15/2012. Class Certification Hearing set for 7/3/2012 09:00 AM in Courtroom 2A before Judge Steele. The parties are ordered by 6/20/2012 to deliver to Judge Steele's chambers a hard copy of briefs & exhibits on class certification. Signed by Magistrate Judge William E. Cassady on 11/29/2011. (Attachments: # 1 Standing Pretrial Order) (tgw) (Entered: 11/29/2011)
Minute Entry for proceedings held before Magistrate Judge William E. Cassady: Evidentiary Hearing held on 1/5/2012. FTR Digital Audio Recording. (eec) (Entered: 01/05/2012)
34 Order: After a hearing on objections to plaintiffs' subpoena for documents concerning student suspensions, the Court shall RESERVE RULING as to whether records pertaining to the approximately 109 students for whom objections have been asserted should be released to the plaintiffs over those objections. Should plaintiffs require records pertaining to the approximately 109 students for whom objections have been asserted, they shall file a motion with the Court. It is ORDERED that consistent with the protective order (Doc. 14) and any agreements between the parties pertaining to the scope of discovery - the defendants shall provide the plaintiffs with not-objected-to student records responsive to the plaintiffs' subpoena. Signed by Magistrate Judge William E. Cassady on 1/6/2012. Copy mailed to Velda Nixon as directed. (tgw) (Entered: 01/06/2012)
35 Notice of Filing Interrogatories filed by Board of School Commissioners of Mobile County. (Taylor, Frank) (Entered: 02/01/2012)
36 NOTICE of Appearance by K. Paul Carbo, Jr on behalf of Board of School

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Commissioners of Mobile County (Carbo, K.) (Entered: 02/10/2012)

03/06/2012

37 MOTION for Jason H. Liss to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128-1231865, Online Credit Card Payment.) by All Plaintiffs. (Attachments: # 1 Application, # 2 Certificates of Good Standing) (Liss, Jason) (Entered: 03/06/2012)

03/07/2012

38 ORDER granting 37 Motion for Jason H. Liss to Appear Pro Hac Vice. Signed by Magistrate Judge William E. Cassady on 3/7/2012. (tgw) (Entered: 03/07/2012)

03/08/2012

39 MOTION for Levi Giovanetto to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128-1233316, Online Credit Card Payment.) by All Plaintiffs. (Giovanetto, Levi) Modified on 3/8/2012 (tgw). (Entered: 03/08/2012)

03/08/2012

40 MOTION for Yin Zhou to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128-1233455, Online Credit Card Payment.) by All Plaintiffs. (Zhou, Yin) (Entered: 03/08/2012)

03/09/2012

41 Order re: 40 MOTION for Yin Zhou to Appear Pro Hac Vice . Counselor Zhou is CONDITIONALLY admitted pro hac vice provided that she SUPPLEMENTS the record with a Certificate of Good Standing from either of the two United States District Courts to which she is presently admitted to practice and is in good standing by 3/23/2012. Signed by Magistrate Judge William E. Cassady on 3/9/2012. copies to parties. (sdb) (Entered: 03/09/2012)

03/09/2012

42 ORDER granting 39 MOTION for Levi Giovanetto to Appear Pro Hac Vice. Signed by Magistrate Judge William E. Cassady on 3/9/2012. copies to parties. (sdb) (Entered: 03/09/2012)

03/13/2012

43 NOTICE of Filing Exhibits Certificate of Good Standing by D.M., E.M., J.C., K.S., M.R., S.A. re: 41 Order, Terminate Motions, Set Deadlines,,, (Zhou, Yin) (Entered: 03/13/2012)

03/13/2012

44 MOTION for Sumit Mallick to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128-1235582, Online Credit Card Payment.) by All Plaintiffs. (Mallick, Sumit) (Entered: 03/13/2012)

03/14/2012

45 MOTION for Christopher Herrling to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128-1235757, Online Credit Card Payment.) by All Plaintiffs. (Herring, Christopher) (Entered: 03/14/2012)

03/14/2012

46 ORDER granting 44 Motion for Sumit Mallick to Appear Pro Hac Vice. Signed by Magistrate Judge William E. Cassady on 3/14/2012. (tgw) (Entered: 03/14/2012)

03/15/2012

47 Order setting a Telephone Status Conference for 3/19/2012 02:00 PM before Magistrate Judge William E. Cassady. Signed by Magistrate Judge William E. Cassady on 3/15/2012. (tgw) (Entered: 03/15/2012)

03/21/2012

48 Order re: 43 Notice of Filing Yin Zhou's Certificate of Good Standing. It is ordered that counselor Zhou is admitted pro hac vice to serve the interests of justice in the above-entitled cause. Signed by Magistrate Judge William E. Cassady on 3/21/2012. (tgw) (Entered: 03/22/2012)

03/21/2012

49 ORDER granting 45 Motion for Christopher J. Herrling to Appear Pro Hac Vice. Signed by Magistrate Judge William E. Cassady on 3/21/2012. (tgw) (Entered: 03/22/2012)

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50 Joint MOTION to Amend Scheduling Order 33 Order by D.M., E.M., J.C., K.S., M.R., S.A.. (Attachments: # 1 Attachment A, # 2 Attachment B) (Liss, Jason) Modified on 3/26/2012 (tgw). (Entered: 03/26/2012)
51 SECOND SUPPLEMENTAL RULE 16(b) SCHEDULING ORDER AND ORDER REGARDING ADDITIONAL FERPA NOTICES: The 50 Joint MOTION to Amend Scheduling Order is granted. The mailing of the revised notices shall be completed by 4/16/12. Parents may assert objections by 4/30/12. The Board shall provide the plaintiffs and the Court with the written objections by 5/3/12. The Board shall provide the plaintiffs with not-objected-to student records by 5/7/12. Discovery cutoff 2/15/2013 (as set out). Settlement Position due by 2/15/2013.Summary Judgment Motions due by 3/18/2013. Pretrial Conference set for 7/9/2013 09:00 AM in Chambers before Judge Steele. This non-jury action will be set for trial during the month of August 2013. Class Certification Motions due by 7/31/2012, with Responses due 8/31/2012 and Replies due 9/14/2012. Class Action Hearing set for 10/3/2012 09:00 AM Courtroom 2A before Judge Steele. The parties are ordered by 9/19/2012 to deliver to Judge Steele's chambers a hard copy of briefs & exhibits on class certification. Signed by Magistrate Judge William E. Cassady on 3/30/2012. (Attachments: # 1 Standing Pretrial Order) (tgw) (Entered: 04/02/2012)
52 MOTION for Joseph J. Mueller to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128-1250746, Online Credit Card Payment.) by D.M., E.M., J.C., K.S., M.R., S.A.. (Mueller, Joseph) (Entered: 04/12/2012)
53 NOTICE by E.M. to Clerk of Service of Discovery Request (Chartoff, Marion) (Entered: 04/25/2012)
54 Notice of Filing Deposition Notices filed by Jason D. Laffitte, Kirven Lang, Jerome Woods. (Hill, Dana) (Entered: 05/02/2012)
55 Notice of Filing Deposition Notice filed by D.M., E.M., J.C., K.S., M.R., S.A.. (Chartoff, Marion) (Entered: 05/18/2012)
56 MOTION for Judgment on the Pleadings by Jason D. Laffitte, Kirven Lang, Jerome Woods. (Hill, Dana) (Entered: 05/18/2012)
57 Order re: 56 MOTION for Judgment on the Pleadings filed by Jerome Woods, Jason D. Laffitte, Kirven Lang. Responses due by 6/1/2012, Replies due by 6/8/2012. Signed by Chief Judge William H. Steele on 5/21/2012. (tgw) (Entered: 05/21/2012)
58 NOTICE of Appearance by Clay Richard Carr on behalf of Jason D. Laffitte, Kirven Lang, Jerome Woods (Carr, Clay) (Entered: 05/21/2012)
59 MOTION to Clarify Scheduling Order by D.M., E.M., J.C., K.S., M.R., S.A.. (Liss, Jason) (Entered: 05/24/2012)
60 AFFIDAVIT re 59 MOTION to Clarify Scheduling Order by D.M., K.S., M.R., E.M., J.C., S.A.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L) (Liss, Jason) (Entered: 05/24/2012)
61 NOTICE by D.M., E.M., J.C., K.S., M.R., S.A. of Service of Discovery (Chartoff,

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Marion) (Entered: 05/25/2012)
62 Objection To Plaintiff's Motion For Clarification of Scheduling Order filed by Board of School Commissioners of Mobile County. (Carbo, K.) (Entered: 05/29/2012)
63 NOTICE by M.R. Of Service of Discovery Requests (Chartoff, Marion) (Entered: 05/29/2012)
64 NOTICE by Board of School Commissioners of Mobile County of Service of Defendants' Responses To Plaintiff's First Request For Production of Documents (Carbo, K.) (Entered: 05/29/2012)
65 THIRD SUPPLEMENTAL RULE 16(b) SCHEDULING ORDER AND ORDER granting 59 MOTION to Clarify. Amended Pleadings due by 7/31/2012. Signed by Magistrate Judge William E. Cassady on 5/30/2012. (tgw) (Entered: 05/30/2012)
66 NOTICE by D.M., E.M., J.C., K.S., M.R., S.A. Of Service of Discovery Request (Chartoff, Marion) (Entered: 05/30/2012)
67 Memorandum in Opposition re 56 MOTION for Judgment on the Pleadings filed by D.M., E.M., J.C., K.S., M.R., S.A.. (Liss, Jason) (Entered: 06/01/2012)
68 AFFIDAVIT in Opposition re 56 MOTION for Judgment on the Pleadings filed by D.M., E.M., J.C., K.S., M.R., S.A.. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Liss, Jason) (Entered: 06/01/2012)
69 ORDER granting 52 Motion for Joseph J. Mueller to Appear Pro Hac Vice. Signed by Magistrate Judge William E. Cassady on 6/5/2012. (tgw) (Entered: 06/05/2012)
70 REPLY to Response to Motion 56 filed by Jason D. Laffitte, Kirven Lang, Jerome Woods. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Carr, Clay) (Entered: 06/06/2012)
71 NOTICE by D.M., E.M., J.C., K.S., M.R., S.A. of Service of Discovery (Chartoff, Marion) (Entered: 06/15/2012)
72 MOTION to Dismiss and Abstain by Board of School Commissioners of Mobile County. (Carbo, K.) (Entered: 06/19/2012)
73 Order re: 72 MOTION to Dismiss and Abstain filed by Board of School Commissioners of Mobile County. Any party opposing the motion must file a response by 7/5/2012. Movants will be allowed until 7/12/2012 to file a reply. Signed by Chief Judge William H. Steele on 6/21/2012. (mbp) (Entered: 06/22/2012)
74 NOTICE by Board of School Commissioners of Mobile County of Service of Defendants' Supplemental Response To Plaintiff's First Request For Production of Documents (Carbo, K.) (Entered: 06/22/2012)
75 NOTICE by D.M., E.M., J.C., K.S., M.R., S.A. of Service of Discovery (Chartoff, Marion) (Entered: 06/27/2012)
76 NOTICE by D.M., E.M., J.C., K.S., M.R., S.A. of Service of Discovery (Johnson, Jadine) (Entered: 07/03/2012)

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77 RESPONSE in Opposition re 72 MOTION to Dismiss and Abstain filed by D.M., E.M., J.C., K.S., M.R., S.A.. (Liss, Jason) (Entered: 07/05/2012)
78 REPLY Brief filed by Defendant Board of School Commissioners of Mobile County re: 77 Response in Opposition to Motion filed by Board of School Commissioners of Mobile County. (Taylor, Frank) (Entered: 07/11/2012)
79 NOTICE by Board of School Commissioners of Mobile County of Service of Defendants' Supplemental Response to Plaintiffs' First Request For Production of Documents (Carbo, K.) (Entered: 07/11/2012)
80 NOTICE by Board of School Commissioners of Mobile County of Service of Deposition Notices (Carbo, K.) (Entered: 07/16/2012)
81 Order granting 56 MOTION for Judgment on the Pleadings. Plaintiffs' claims against defendants Jerome Woods, Kirven Lang, and Jason D. Laffitte are dismissed without prejudice, and the Clerk of Court is directed to terminate those individuals as parties defendant. Signed by Chief Judge William H. Steele on 7/18/2012. (tgw) (Entered: 07/18/2012)
82 NOTICE of Appearance by Maria V. Morris on behalf of D.M., E.M., J.C., K.S., M.R., S.A. (Morris, Maria) (Entered: 07/19/2012)
83 NOTICE by Board of School Commissioners of Mobile County of Service (Carbo, K.) (Entered: 07/25/2012)
84 MOTION to Certify Class by D.M., E.M., J.C., K.S., M.R., S.A.. (Mallick, Sumit) Modified on 8/1/2012 (tgw). (Entered: 07/31/2012)
85 MOTION to Amend Complaint 1 Complaint, by D.M., E.M., J.C., K.S., M.R., S.A.. (Attachments: # 1 Exhibit A (Proposed Amended Complaint)) (Liss, Jason) (Entered: 08/01/2012)
86 Memorandum in Support of 84 Motion to Certify Class by D.M., E.M., J.C., K.S., M.R. (Attachments: # 1 C.H. Declaration, # 2 G.H. Declaration, # 3 E.I. Declaration, # 4 R.M. Declaration, # 5 L.M. Declaration, # 6 P. Schwechheimer Declaration, # 7 Exhibit P. Schwechheimer (Exhibits 1-4), # 8 M. Chartoff Declaration, # 9 S. Mallick Declaration, # 10 Exhibit S. Mallick (Exhibit A), # 11 Exhibit S. Mallick (Exhibit B), # 12 Exhibit S. Mallick (Exhibit C), # 13 Exhibit S. Mallick (Exhibit D), # 14 Exhibit S. Mallick (Exhibit E), # 15 Exhibit S. Mallick (Exhibit F), # 16 Exhibit S. Mallick (Exhibit G)) (Mallick, Sumit) Modified on 8/1/2012 (tgw). (Entered: 08/01/2012)
87 Order re: 85 MOTION to Amend Complaint filed by D.M., K.S., E.M., J.C., S.A., M.R. Responses due by 8/8/2012. Signed by Chief Judge William H. Steele on 8/1/2012. (tgw) (Entered: 08/01/2012)
88 Objection re: 85 MOTION to Amend Complaint 1 Complaint, filed by Board of School Commissioners of Mobile County. (Carbo, K.) (Entered: 08/01/2012)
89 Brief filed by Board of School Commissioners of Mobile County filed by Board of School Commissioners of Mobile County. (Carbo, K.) (Entered: 08/01/2012)
90 Order granting 85 MOTION to Amend Complaint. Plaintiff is directed to file the Amended Complaint by 8/14/2012. Answer to Amended Complaint due from

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Board of School Commissioners of Mobile County on 9/6/2012. Defendant's Motion to Dismiss (doc. 72) has been taken under submission and will be decided in due course. Signed by Chief Judge William H. Steele on 8/7/2012. (tgw) (Entered: 08/08/2012)
91 AMENDED COMPLAINT against All Defendants, filed by D.M., K.S., M.R., E.M., J.C., S.A.. (Mallick, Sumit) (Entered: 08/09/2012)
92 Joint MOTION to Withdraw J.C. as Plaintiff by D.M., E.M., J.C., K.S., M.R., S.A.. (Giovanetto, Levi) (Entered: 08/24/2012)
93 Order re: 92 Joint MOTION to Withdraw J.C. as Plaintiff J.C. All of plaintiff's J.C.'s claims are dismissed without prejudice. The Clerk is directed to terminate J.C. (and next friend Alicia Campbell) as a party plaintiff to this action. This action will proceed as to all other claims brought by all other plaintiffs. Signed by Chief Judge William H. Steele on 8/28/2012. (tgw) (Entered: 08/28/2012)
94 ORDER denying 72 Motion Abstain and Dismiss. Signed by Chief Judge William H. Steele on 8/30/2012. (tgw) (Entered: 08/30/2012)
95 Evidentiary Material Notice of Filing Under Seal filed by Board of School Commissioners of Mobile County. (Carbo, K.) (Additional attachment(s) added on 9/4/2012: # 1 Depo Excertps of Mary Simmons, # 2 Depo Excertps of Michelle Manassa, # 3 Depo Excerpt of E.M., # 4 Depo Excerpt of Pinkie Manassa, # 5 Electronic School Record for M.R., # 6 Electronic School Record for C.H., # 7 Electronic School Record for G.H., # 8 Electronic School Records for D.M., # 9 Electronic School Records for S.A., # 10 Electronic School Records for K.S., # 11 Electronic School Records for E.M., # 12 Disputed Factual Issues) (tgw). (Entered: 08/31/2012)
96 Objection re: 84 MOTION to Certify Class filed by Board of School Commissioners of Mobile County. (Carbo, K.) (Entered: 08/31/2012)
97 ANSWER to 91 Amended Complaint by Board of School Commissioners of Mobile County. (Taylor, Frank) (Entered: 09/05/2012)
98 REPLY to 96 Objection filed by D.M., E.M., K.S., M.R., S.A.. (Liss, Jason) (Entered: 09/14/2012)
99 AFFIDAVIT in Support re 84 MOTION to Certify Class (Supplemental Expert Declaration of Peter Schwechheimer) filed by D.M., E.M., K.S., M.R., S.A.. (Liss, Jason) (Entered: 09/14/2012)

09/14/2012

100 AFFIDAVIT in Support re 84 MOTION to Certify Class (Declaration of Jason H. Liss) filed by D.M., E.M., K.S., M.R., S.A.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Liss, Jason) (Entered: 09/14/2012)

09/19/2012

101 Unopposed MOTION for Marion Chartoff to Withdraw as Attorney by M.R.. (Chartoff, Marion) (Entered: 09/19/2012)

09/20/2012

102 ORDER granting 101 Motion to Withdraw as Attorney. Attorney Marion Dawn Chartoff terminated as counsel for plaintiffs. Signed by Magistrate Judge William E. Cassady on 9/20/2012. (tgw) (Entered: 09/20/2012)

09/25/2012 103 Order canceling the Class Certification Hearing which was set for 10/3/12. The

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Court now takes the Motion for Class Certification (doc. 84) under submission, without oral argument, on the parties' briefs and accompanying exhibits. Signed by Chief Judge William H. Steele on 9/25/2012. (tgw) (Entered: 09/26/2012)

10/18/2012

104 NOTICE by D.M., E.M., K.S., M.R., S.A. of Service of Discovery (Liss, Jason) (Entered: 10/18/2012)

10/22/2012

105 MOTION for Christopher M. Straw to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128-1345393, Online Credit Card Payment.) by D.M., E.M., K.S., M.R., S.A.. (Straw, Christopher) (Entered: 10/22/2012)

10/23/2012

106 NOTICE by D.M., E.M., K.S., M.R., S.A. of Service of Discovery (Liss, Jason) (Entered: 10/23/2012)

10/26/2012

107 ORDER granting 105 Motion for Christopher M. Straw to Appear Pro Hac Vice. Signed by Magistrate Judge William E. Cassady on 10/26/2012. (tgw) (Entered: 10/29/2012)

10/29/2012

108 ORDER denying 84 Motion for Class Certification. Signed by Chief Judge William H. Steele on 10/29/2012. (tgw) (Entered: 10/29/2012)

11/02/2012

109 NOTICE by D.M., E.M., K.S., M.R., S.A. of Service of Discovery (Liss, Jason) (Entered: 11/02/2012)

11/09/2012

110 NOTICE by D.M., E.M., K.S., M.R., S.A. of Service of Discovery (Liss, Jason) (Entered: 11/09/2012)

11/13/2012

111 NOTICE by D.M., E.M., K.S., M.R., S.A. of Service of Discovery (Liss, Jason) (Entered: 11/13/2012)

11/21/2012

112 NOTICE by D.M., E.M., K.S., M.R., S.A. of Service of Discovery Materials (Liss, Jason) (Entered: 11/21/2012)

12/27/2012

113 NOTICE by Board of School Commissioners of Mobile County of Service of Deposition Notices to Plaintiffs (Carbo, K.) (Entered: 12/27/2012)

01/24/2013

114 NOTICE by D.M., E.M., K.S., M.R., S.A. of Service of Discovery Materials (Liss, Jason) (Entered: 01/24/2013)

01/28/2013

115 NOTICE by D.M., E.M., K.S., M.R., S.A. of Service of Discovery Materials (Liss, Jason) (Entered: 01/28/2013)

03/01/2013

116 Joint MOTION for Mediation by D.M., E.M., K.S., M.R., S.A.. (Johnson, Jadine) (Entered: 03/01/2013)

03/05/2013

117 ORDER REFERRING CASE to Mediation. Selection of Mediator due by 4/1/2013. The first mediation conference shall be initiated not later than 5/1/2013. Signed by Magistrate Judge William E. Cassady on 3/5/2013. (tgw) (Entered: 03/05/2013)

03/08/2013

118 MOTION for Summary Judgment by Board of School Commissioners of Mobile County. (Attachments: # 1 Text of Proposed Order, # 2 Brief In Support of Motion for Summary Judgment, # 3 Suggested Determinations of Undisputed Facts & Conclusions of Law) (Carbo, K.) (Entered: 03/08/2013)

03/11/2013

119 Order on the 118 MOTION for Summary Judgment setting response time as follows: Response to S/J due by 4/5/2013. Replies to Response to S/J due by

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4/19/2013. The motion will be taken under submission on 4/19/2013. Signed by Chief Judge William H. Steele on 3/11/2013. (tgw) (Entered: 03/11/2013)
120 DESIGNATION OF MEDIATOR filed by G.H., D.M., M.R., E.M., C.H., K.S., S.A.. (Johnson, Jadine) (Entered: 04/01/2013)

04/08/2013

122 Order directing the plaintiffs by 4/19/2013 to file a fully briefed, legally and factually supported justification for submitting its entire summary judgment response under seal. Signed by Chief Judge William H. Steele on 4/8/2013. (tgw) (Entered: 04/08/2013)

04/09/2013

123 Position Regarding Mediation Mediator's Status Report filed by Michael E. Upchurch. (Upchurch, Michael) (Entered: 04/09/2013)

04/15/2013

124 REPORT OF MEDIATOR filed by Mediator Michael E. Upchurch. (Upchurch, Michael) Modified on 4/15/2013 (tgw). (Entered: 04/15/2013)

04/17/2013

125 Order re: 124 Status Report regarding mediation filed by Michael E. Upchurch. The request for additional time is granted. The mediator is ordered to file a supplemental status report by 5/13/2013. Signed by Magistrate Judge William E. Cassady on 4/17/2013. (tgw) (Entered: 04/17/2013)

04/18/2013

126 REPLY Brief filed by Defendant Board of School Commissioners of Mobile County re: 118 MOTION for Summary Judgment filed by Board of School Commissioners of Mobile County. (Taylor, Frank) (Entered: 04/18/2013)

04/18/2013
04/24/2013 05/08/2013 05/09/2013

127 Brief filed by C.H., D.M., E.M., G.H., K.S., M.R., S.A. regarding submitting entire summary judgement response under seal. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit Opposition - Redacted, # 4 Exhibit Disputed Facts - Redacted, # 5 Exhibit Straw Decl, # 6 Exhibit 1, # 7 Exhibit 2, # 8 Exhibit 3, # 9 Exhibit 4, # 10 Exhibit 5, # 11 Exhibit 6 - Redacted, # 12 Exhibit 7 - Redacted, # 13 Exhibit 8 Redacted, # 14 Exhibit 9 - Redacted, # 15 Exhibit 10, # 16 Exhibit 11, # 17 Exhibit 12, # 18 Exhibit 13, # 19 Exhibit 14, # 20 Exhibit 15 - Redacted, # 21 Exhibit 16, # 22 Exhibit 17, # 23 Exhibit 18 - Redacted, # 24 Exhibit 19 - Redacted, # 25 Exhibit 20 - Redacted, # 26 Exhibit 21, # 27 Exhibit 22, # 28 Exhibit 23, # 29 Exhibit 24, # 30 Exhibit 25, # 31 Exhibit 26 - Redacted, # 32 Exhibit 27 - Redacted, # 33 Exhibit 28 - Redacted, # 34 Exhibit 29 - Redacted, # 35 Exhibit 30 - Redacted, # 36 Exhibit 31 - Redacted, # 37 Exhibit 32 - Redacted, # 38 Exhibit 33 - Redacted, # 39 Exhibit 34, # 40 Exhibit 35, # 41 Exhibit 36, # 42 Exhibit 37, # 43 Exhibit 38, # 44 Exhibit 39, # 45 Exhibit 40, # 46 Exhibit 41, # 47 Exhibit 42, # 48 Exhibit 43, # 49 Exhibit 44) (Straw, Christopher) (Entered: 04/18/2013)
128 Position Regarding Mediation Mediator's Interim Status Report filed by Michael E. Upchurch. (Upchurch, Michael) (Entered: 04/24/2013)
129 Position Regarding Mediation Report of Mediator filed by Michael E. Upchurch. (Upchurch, Michael) (Entered: 05/08/2013)
130 Order re: 129 Report of Mediator filed by Michael E. Upchurch. The request for an extension is granted. The mediator shall submit his next status report by 5/24/2013. Signed by Magistrate Judge William E. Cassady on 5/9/2013. (tgw) (Entered: 05/10/2013)

05/24/2013

131 Position Regarding Mediation Report of Mediator filed by Michael E. Upchurch. (Upchurch, Michael) (Entered: 05/24/2013)

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132 Order re: 131 Report of Mediator filed by Michael E. Upchurch. The request for an extension is granted. The mediator shall submit his next status report by 6/7/2013. Signed by Magistrate Judge William E. Cassady on 5/28/2013. (tgw) (Entered: 05/28/2013)
133 Position Regarding Mediation Report of Mediator filed by Michael E. Upchurch. (Upchurch, Michael) (Entered: 06/07/2013)

06/10/2013 06/10/2013
06/27/2013 06/28/2013

134 Position Regarding Settlement Report of Mediator filed by Michael E. Upchurch. (Upchurch, Michael) (Entered: 06/10/2013)
135 Order entered that this action is DISMISSED WITH PREJUDICE subject to the right of either party to reinstate the action within 30 days, as set out. The parties and/or mediator are directed to report to the Court on the School Board's decision regarding settlement by 6/27/2013. Signed by Chief Judge William H. Steele on 6/10/2013. (tgw) (Entered: 06/11/2013)
136 RESPONSE TO ORDER re: 135 Order to Dismiss on Settlement, Set Deadlines,, by Board of School Commissioners of Mobile County filed by Board of School Commissioners of Mobile County. (Carbo, K.) (Entered: 06/27/2013)
137 SETTLEMENT AGREEMENT by G.H., D.M., M.R., E.M., J.C., C.H., K.S., S.A.. (Attachments: # 1 Exhibit Executed Settlement Agreement) (Johnson, Jadine) (Entered: 06/28/2013)

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02/03/2014 22:04:35

hs0328

Client Code: Fries

Docket Report Search Criteria: 1:11-cv-00245-WS-C

19

Cost:

1.90

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