United States District Court, C.D. California
Attorneys Present for Plaintiffs: Jonathan Nielsen, Terrence
Attorneys Present for Defendants: Lucien Schmit, III Drew
Present: The Honorable CHRISTINA A. SNYDER
CIVIL MINUTES - GENERAL
LAUSD'S MOTIONS IN LIMTNE (Filed April 3, 2017, Dkt. Nos.
MOTIONS IN LIMINE (Filed April 3, 2017, Dkt. Nos. 112-117)
January 14, 2016, plaintiff Jane Doe, a minor, by and through
her parental Guardian Ad Litem, John Doe (collectively,
"plaintiff), filed the instant action against
defendants: the Los Angeles Unified School District
("LAUSD"); Paul Revere Middle School and Magnet
Center ("Paul Revere"); Steven Carnine
("Carnine"), a former teacher at Paul Revere;
Thomas Iannucci ("Iannucci"), the assistant
principal of Paul Revere; Christopher Perdigao
("Perdigao"), the principal of Paul Revere; and
Michelle King ("King"), the superintendent of LAUSD
(collectively, "defendants"). Dkt. 1. On March 17,
2016, all of the defendants, with the exception of Carnine,
filed a motion to dismiss portions of plaintiff s complaint.
Dkt. 38. On May 16, 2016, the Court granted in part and
denied in part defendants' motion. Dkt. 47
14, 2016, plaintiff filed the operative First Amended
Complaint ("FAC").Dkt. 50. In the FAC, plaintiff
asserts claims against Paul Revere and LAUSD for: (1)
Violation of Title VI of the Civil Rights Act, 42 U.S.C.
§ 2000d-Hostile Racial Educational Environment; (2)
Violation of Title VI of the Civil Rights Act, 42 U.S.C.
§ 2000d-Intentional Discrimination on the Basis of Race;
and (3) Violation of Title VI of the Civil Rights Act, 42
U.S.C. § 2000d-Intentional Discrimination on the Basis
of Race by Failure to Provide Adequate Sensitivity Training.
Plaintiff also asserts two claims against the individual
defendants, Carnine, Perdigao, and Iannucci: (4) Violation of
42 U.S.C. § 1983-Freedom of Speech; and (5) Violation of
42 U.S.C. § 1983-Equal Protection. In brief, plaintiff
alleges that Carnine, a teacher at plaintiffs former middle
school, Paul Revere, made racially offensive comments to her
during class. Plaintiff alleges that the remaining defendants
failed to take adequate steps to protect plaintiff from the
hostile educational environment that erupted after she
complained about Carnine's statements.
August 8, 2016, the Court granted defendants' motion to
dismiss plaintiffs third claim for relief. Dkt. 65.
December 28, 2016, Carnine filed a motion for summary
judgment with respect to the two claims against him. Dkt. 76.
On December 29, 2016, LAUSD, Paul Revere, Iannucci, and
Perdigao filed a motion for summary judgment on all of
plaintiff s claims. Dkt. 78. On February 27, 2017, the Court
denied both motions for summary judgment. Dkt. 91.
April 3, 2017, the LAUSD defendants filed eight motions in
limine. Dkts. 103-110. Carnine filed five motions in limine,
dkts. 112-116, and a notice of joinder in the first, fourth,
and seventh motions in limine filed by the LAUSD defendants,
dkt. 117. Plaintiff did not file any motions in limine.
April 10, 2017, plaintiff filed a notice of non-opposition to
the LAUSD defendants' first motion in limine, dkt. 128,
and to Carnine's first motion in limine, dkt. 137. On the
same day, plaintiff filed an opposition to each of
defendants' other motions in limine. Dkts. 129-134,
138-141, 143. On April 10, 2017, the LAUSD defendants also
filed an opposition to Carnine's fifth motion in limine.
carefully considered the parties' arguments, the Court
finds and concludes as follows.
is an African American student who was formerly enrolled at
Paul Revere Middle School. The events giving rise to plaintiffs
claims for relief took place during the second semester of
Jane Doe's eighth grade year at Paul Revere.
Carnine's History Class
beginning of the semester in January 2015, Doe was
transferred into an Honors History class taught by Carnine.
Although defendants dispute her allegations, Doe claims that
Carnine was rude to her when she arrived and treated her
differently from other students. Doe Decl. ¶¶
first Friday of the semester, January 16, 2015, the Friday
before the Martin Luther King holiday, Carnine led a
discussion about stereotypes. During his deposition, Carnine
testified that a student said "[a]ll Jewish people are
rich, " and another said, "blacks are good at
sports." Carnine Depo. 84:9-19. Carnine recalls
discussing a stereotype that Hispanic and African American
students are "poor and don't perform well, " id
85:23-24, but does not recall all of the stereotypes
discussed. Doe recalls a student saying that African
Americans are sometimes stereotyped as being athletic and not
being smart. In response, plaintiff remembers Carnine saying
"yes, that is a good example . . . most black people are
not smart: they're just good athletes." Doe Depo.
67:2-4. According to plaintiff, Carnine never said he did not
believe in the foregoing stereotypes. Doe Decl. ¶ 22.
point during the discussion, Carnine mentioned Michael
Brown.According to Doe, Carnine said that his own
view of the situation in Ferguson, Missouri, was that
"Michael Brown was a thug who got what he
deserved." Doe Decl. ¶ 21; Doe Depo. 67:20-68:6.
Doe recalls Carnine continuing, "I know that if I see
two black people walking behind me at night, I'm
immediately going to get scared and think they're either
going to hurt me or rob me." Doe Depo. 68:4-6. Carnine
recalls telling the class that "if Dr. Martin Luther
King was living today, he would be involved in issues like
the Sanford [sic] or Staten Island or Ferguson,
"" but does not recall specifically what he
explained. Carnine Depo 97:3-6. Doe was very upset by
Carnine's comments and relayed them to her parents that
evening. Doe claims that she was worried and scared about
returning to Carnine's class.
January 28, 2015, after missing a few days of school,
plaintiff claims that Carnine treated her rudely.
January 29, 2015, Doe attended Carnine's class again. The
parties dispute what exactly was said during the January 29
class, its tone, and the context in which it occurred. Doe
testified during her deposition that the students were doing
"book work" during the class period, in which they
would silently work in their textbooks. Doe Decl. ¶ 33.
According to plaintiff, near the beginning of class:
[Carnine] said that 'If you want to know why Abraham
Lincoln was hated as a president' - he then leaned into
me and he said that 'He was an N-I-G-G-E-R lover, '
and he said, 'Isn't that right, [Jane Doe]?' And
he looked at me, and he said that to me.
Doe Depo. 75:1-9. Doe further testified that:
[a]fter that it was - it was dead silence . . . I just wanted
to leave the classroom, but I was -1 didn't want to get
in trouble, and I was just really, really scared . . .
Because he was just really close to me and leaned into me . .
. he was really close. I could smell his breath, and then I
was really nervous.
Id. 78:3-8. Carnine testified during his deposition
that he said:
Excuse the vernacular of that time, because it's an - you
know, it's a word that shouldn't be
used, you know, in - except I'm using it to bring out the
anger, the viciousness that the South felt at the defeat of
the Civil War.
Carnine Depo. 109:21-25. Carnine claims he said "there
was much hatred of Lincoln and that much of that hatred
stemmed from the fact that he was viewed by many as a
(spelling it out) 'n-i-g-g-e-r lover.'" Carnine
Decl. ¶ 29. Carnine claims that he did not direct any
comment at plaintiff when he spelled the word and that he did
not stare at plaintiff. Id. ¶ 30.
The School's Investigation and Response to
Doe was at school on January 29, 2015, her father called
Perdigao to report Carnine's behavior from the previous
classes. Plaintiffs father recalls that when he spoke with
Perdigao about the stereotypes class, "Perdigao laughed
it off and said Mr. Carnine was 'old school' and that
we should take a meeting with Mr. Carnine to express our
concerns." John Doe Decl. ¶ 21.
evening of January 29, 2015, plaintiff told her parents and
godmother about what had happened in her most recent history
class. Plaintiffs father called the school a second time on
that same day and scheduled a meeting for the next morning.
On January 30, 2015, plaintiff, her parents, and her
godmother all met with the vice principal, Iannucci;
plaintiffs academic counselor, Joy Kobashi; and Derek
Hubbard, an African American staff member at the school.
During the meeting, Iannucci told plaintiffs family that he
would investigate the concerns they had presented. Paul
Revere staff agreed to transfer plaintiff to a new Honors
History class. Plaintiff did not return to Carnine's
investigate plaintiffs complaints. Iannucci randomly selected
seven students from Carnine's class, interviewed them,
and obtained written statements from them. Iannucci planned
to meet with Carnine about plaintiffs complaint and
Iannucci's subsequent investigation. In early February
2015, before Iannucci met with Carnine, a student with an
Individualized Education Plan ("IEP") in one of
Carnine's other classes complained that Carnine made a
derogatory statement about IEPs and students who had them.
Iannucci investigated both complaints, in tandem. Throughout
his investigation, Iannucci consulted with District
Operations and Staff Relations personnel within the LAUSD
administrative offices - specifically Brenda Olortegui, Staff
Relations Director at the Educational Service Center, West
February 12, 2015, Iannucci met with Carnine to discuss the
complaints. On or about February 20, 2015, Olortegui prepared
and presented a Worksheet for Potential Discipline Discussion
to her supervisor and peers in Staff Relations. The consensus
of the Staff Relations meeting was to recommend issuing a
Notice of Unsatisfactory Act ("NOUA") to Carnine
and suspend him for between five and eight days. Staff
Relations presented its recommendation to Perdigao and
Iannucci, who decided to suspend Carnine for eight days.
March 18, 2015, plaintiff filed a complaint in Los Angeles
County Superior Court, see Case No. BC576028 ("the State
Case"), against defendants alleging a Civil Rights Claim
based upon California's Unruh Civil Rights Act, see Cal.
Civ. Code §§ 52 et seq.
March 19, 2015, Perdigao sent a letter to Carnine notifying
him that a meeting would be held to discuss Perdigao's
"tentative intention to issue" an NOUA and
"possible suspension." LAUSD Ex. 204. The meeting
with Carnine was scheduled to occur on March 24, 2015.
State Case garnered immediate press attention. LAUSD staff
determined that Carnine should be removed from his classroom
and reassigned. Accordingly, on Friday, March 20, 2015,
Carnine was reassigned from his classroom to the LAUSD
ESC-West office. On the same day, Perdigao sent a revised
letter to Carnine notifying him that Perdigao's tentative
recommendation was for dismissal and suspension without pay.
Over the weekend between March 20, 2015, and March 23, 2015,
LAUSD administrators reconsidered their position and
determined that the original recommendation of suspension had
been correct. Olortegui Decl. ¶ 10. On Monday, March 23,
2015, protests occurred on school grounds at Paul Revere,
discussed in more detail below.
disciplinary meeting with Carnine occurred on March 25, 2015,
at which time Paul Revere administrators served Carnine with
the NOUA and a Notice of Suspension for eight days. On March
26, 2015, Carnine appealed his suspension pursuant to the
United Teachers Los Angeles Collective Bargaining Agreement
and was returned to his classroom. It is undisputed that it
is common for the appeal process to take several months that
it sometimes takes over a year.
Carnine sent notice of his appeal to Olortegui, it was
Olortegui's responsibility to schedule an appeal meeting
and move the process forward if LAUSD intended to pursue
disciplinary action. Olortegui did not schedule an appeal
hearing. LAUSD took no further steps to pursue disciplinary
action against Carnine. Carnine was neither suspended nor
terminated. Carnine's appeal of the suspension was, for
practical purposes, the last act in relation to Carnine's
discipline and terminated the proceedings. Carnine retired
from teaching at some time in 2016.
The Response to the State Case
plaintiffs declaration, she states that, after January 29,
2015, she did not receive any updates about the process and
progress relating to any potential disciplinary action
against Carnine. She continued to see him in the school
hallways. Doe Decl. ¶ 47. Plaintiff was distressed by
her experiences in Carnine's class and suffered from
insomnia as well as crying spells. By March 18, 2015,
plaintiff and plaintiffs family had heard nothing about
possible disciplinary action against Carnine and filed the
March 19, 2015, the day after plaintiff filed the State Case,
there were news trucks in front of the school and a crowd of
parents when plaintiff was dropped off. According to
plaintiff, news broke online that she had filed the State
Case. Id. ¶ 51. Plaintiff claims that fellow
students began to ask her questions about it. Id.
Plaintiff further claims, "I was also told by students
that I was 'going to pay for this." Id. On
March 20, 2015, Carnine was removed from his classroom and
temporarily reassigned to ESC-West.
the weekend, March 21 and 22, 2015, news of the State Case
spread as well as news of Carnine's reassignment. By the
end of the weekend, a "Save Carnine" movement had
developed among, primarily, parents and plaintiffs peers. On
Sunday, March 22, 2015, Perdigao became aware that there was
a group of people planning to organize in defense of Carnine
and against the State Case.
parties agree that, on March 23, 2015, there were protests on
Paul Revere school grounds relating to plaintiffs State Case.
Before school started on March 23, 2015, a group of at least
50 to 100 people, many of them parents, gathered in front of
Paul Revere with signs. When plaintiff arrived at school,
cars were honking and people were yelling "Bring Him
Back" and "Save Carnine." Doe Deck ¶ 54.
There was also at least one news truck in front of the
recalls making her way through the protesters to get to her
first class. Plaintiff claims that no administrator or
teacher spoke to her or checked on her, but that her peers
were asking her lots of questions focused on the State Case.
Doe Decl. ¶ 58. The parties contest what transpired over
the course of the remainder of the school day on March 23,
2015. In general, plaintiff claims to have, throughout the
day, heard students chanting "down with the black girl,
" and "[Jane Doe] is a B." Id.
¶ 61. She claims students began displaying messages on
their shirts with the same two messages she heard chanted.
After fourth period, plaintiff had lunch. At the beginning of
lunch, there was no chanting or protesting. Plaintiff claims
that, "[a]s lunch progressed, there was a huge rally of
angry students chanting, 'We want Canine, ' [sic]
'Jane is a B, ' and 'Down with the black
girl.' Mr. Perdigao and Mr. Iannucci were both there.
They saw and heard everything but did not interject or stop
them. They never checked on me." Id. ¶ 66.
Plaintiff finished her lunch in the bathroom and left school
soon thereafter. Id.
parties agree that at an undetermined time during the school
day on March 23, 2015, there was a student walkout and
demonstration of approximately 500 students. A large group of
students did not go to class and participated in a sit-in in
the quad. Iannucci Decl. ¶ 14; Perdigao ¶ 11 - The
large group of students congregated in the quad initially.
Iannucci announced that students participating in the
demonstration would be given detention. Perdigao claims,
"the crowd was noisy and disruptive, we tried to get
these students to go back to class, but it became apparent
that would not work, so we moved these students into the
school auditorium." Perdigao Decl. ¶ 11. Once in
the auditorium, school administrators distributed index cards
to students to write questions. Administrators answered
questions and told students "their support for Mr.
Carnine could not extend to disrespectful or intimidating
words or acts directed to any student." Id.
After the discussion in the auditorium, most students
returned to their classes. A small number remained for a
sit-in in the quad. None of the participating students were
punished in any way. Students who missed class were marked as
absent for extracurricular activities rather than being
marked as truant.
parties dispute the tenor of the protests, what Paul Revere
administrators knew or should have known about the protests,
and how Paul Revere responded to the protests. Numerous
school staff and teachers have submitted declarations stating
that they did not see signs or shirts referring to plaintiff
in disparaging language and that they did not hear
disparaging chants on March 23, 2015. The parties also
dispute whether a Paul Revere counselor "shadowed"
plaintiff during the school day of March 23, 2015, to ensure
she was okay.
returned to school on April 7, 2015, after spring break. Paul
Revere assigned Edwina Harding to "shadow"
plaintiff from the beginning of April until the end of the
school year. Plaintiff claims that other students avoided her
for the rest of the year. Plaintiff graduated from Paul
Revere at the end of the 2015 school year.
claims against Paul Revere and LAUSD are for alleged
violations of Title VI of the Civil Rights Act. In pertinent
part, Title VI of the Civil Right Act provides that no
shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity
receiving Federal financial assistance.
42 U.S.C. § 2000d. Plaintiff alleges that Paul Revere
and LAUSD violated Title VI in three ways: (1) by being
deliberately indifferent to a racially hostile educational
environment, (2) by intentionally denying her the benefit of
a public education on the basis of her race, and (3) by
intentionally retaliating against her for bringing complaints
about racial discrimination. The first two theories of
liability under Title VI are predicated upon Paul
Revere's and LAUSD's alleged failure to appropriately
respond to Carnine's classroom conduct and their alleged
failure to appropriately respond to and protect plaintiff
from racial harassment during the "Save Carnine"
protests. The third is predicated upon Paul Revere's and
LAUSD's response to the "Save Carnine" protests
and plaintiffs allegation that the school and district
permitted racial harassment during the protests as
retaliation for her filing of the State Case.
claims against Iannucci, Perdigao, and Carnine are for
violation of plaintiffs First Amendment rights and plaintiffs
Fourteenth Amendment right to equal protection of the laws.
Her claims against Iannucci and Perdigao are different from
her claims against Carnine.
First Amendment claim against Carnine is that Carnine's
conduct on January 29, 2015, was in retaliation for
plaintiffs protected speech, namely her complaints about
prior history classes with Carnine. Plaintiff alleges that
Carnine's conduct in the classroom was also racial
harassment in contravention of her Equal Protection rights.
First Amendment claim against Iannucci and Perdigao is that
they intentionally permitted the "Save Carnine"
protests on campus in retaliation for her exercise of her
First Amendment right to file the State Case. She further
alleges that Iannucci and Perdigao permitted the "Save
Carnine" protests to proceed in retaliation for her
complaining about racial discrimination - an alleged
violation of her Equal Protection rights.
LAUSD'S AND CARNINE'S UNOPPOSED MOTIONS IN
LAUSD defendants' first motion in limine seeks an order
all evidence, references to evidence, testimony, or argument
relating to settlement discussions for the purpose of proving
or disproving the validity or amount of a disputed claim or
impeaching by a prior inconsistent statement or a
contradiction; and requiring an offer of proof at sidebar or
outside jury's presence ...