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Doe v. Los Angeles Unified School District

United States District Court, C.D. California

April 24, 2017


          Attorneys Present for Plaintiffs: Jonathan Nielsen, Terrence Jones

          Attorneys Present for Defendants: Lucien Schmit, III Drew Antablin/Andrea Bruce

          Present: The Honorable CHRISTINA A. SNYDER


         Proceedings: LAUSD'S MOTIONS IN LIMTNE (Filed April 3, 2017, Dkt. Nos. 103-110)

         CARNINE'S MOTIONS IN LIMINE (Filed April 3, 2017, Dkt. Nos. 112-117)


         On 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

         On June 14, 2016, plaintiff filed the operative First Amended Complaint ("FAC").[1]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.

         On August 8, 2016, the Court granted defendants' motion to dismiss plaintiffs third claim for relief. Dkt. 65.

         On 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.[2] Dkt. 78. On February 27, 2017, the Court denied both motions for summary judgment. Dkt. 91.

         On 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.

         On 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. Dkt. 142.

         Having carefully considered the parties' arguments, the Court finds and concludes as follows.


         Plaintiff is an African American student who was formerly enrolled at Paul Revere Middle School.[3] 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.

         A. Carnine's History Class

         At the 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. ¶¶ 13-14.

         On the 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.

         At some point during the discussion, Carnine mentioned Michael Brown.[4]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, ""[5] 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.

         On January 28, 2015, after missing a few days of school, plaintiff claims that Carnine treated her rudely.

         On 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.

         B. The School's Investigation and Response to Complaints

         While 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.

         The 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 class.

         To 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 ("ESC-West").

         On 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.

         On 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.[6]

         On 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.

         The 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.

         The 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.

         After 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.[7]

         C. The Response to the State Case

         In 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 State Case.

         On 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.

         Over 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.

         The 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 school.

         Plaintiff 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."[8] 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.

         The 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.

         The 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.[9]

         Plaintiff 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.


         Plaintiffs 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 person:

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.

         Plaintiffs 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.

         Plaintiffs 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.

         Plaintiffs 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.


         The LAUSD defendants' first motion in limine seeks an order excluding:

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 ...

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