Thomas v. Evansville-Vanderburgh School Corp. , 258 F. App'x 50 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 19, 2007*
Decided December 26, 2007
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 07-2083
DEBRA L. THOMAS, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of
Indiana, Evansville Division
v.
No. 02 C 24
EVANSVILLE-VANDERBURGH
SCHOOL CORP., et al., Larry J. McKinney,
Defendants-Appellees. Chief Judge.
ORDER
This appeal concerns the measures taken by a public elementary school’s
teachers, counselors, principal, and nurse in response to a student’s claims that her
mother was abusing her. The mother, Debra Thomas, seeks relief under 42 U.S.C.
§ 1983, contending that school officials deprived her of her constitutional rights to
equal protection under the law by falsely reporting that she had abused her
daughter, Marteisha Mosley. Thomas further contends that, in meeting regularly
with Marteisha without Thomas’s knowledge, a school counselor deprived Thomas
*
After an examination of the briefs and the record, we have concluded
that oral argument is unnecessary. The appeal is submitted on the briefs and the
record. See FED. R. APP. P. 34(a)(2).
No. 07-2083 Page 2
of her substantive due process right to direct the upbringing of her child. And she
argues that school officials have since retaliated against her for complaining about
their handling of Marteisha’s situation by rejecting her request to enroll her other
children at the school. The district court granted summary judgment for the school
and its officials, and Thomas appeals. We affirm.
We recite the facts in the light most favorable to Thomas. Between January
1998 and March 2000, Marteisha was enrolled at Lodge Elementary School in
Evansville, Indiana. During that period, members of the school staff—teacher
Debra Kasacavage, nurse Marilyn Wright, principal Pat Loge, and guidance
counselor Thomas Higgs—reported to Child Protective Services (CPS) ten incidents
of Thomas’s suspected abuse of Marteisha. Eight of the reports related that
Marteisha had told a staff member that her mother had slapped her, struck her
with an electrical cord, or whipped her with a switch. CPS confirmed that two of
those reports were substantiated—the reports on March 25 and December 8, 1998,
both of which included observations of bruises and welts on Marteisha’s body. The
CPS deemed unsubstantiated the other six reports of physical abuse. Principal
Loge filed the two remaining reports—one in 1998 and the other in 2000. In the
first, she reported that Marteisha rode a city bus alone to her babysitter; in the
second, she reported that Thomas had called the school and threatened to kill her
daughter. Those reports also were deemed unsubstantiated. But the CPS, which
has a procedure for investigating whether a report is false, did not initiate that
procedure with respect to any of the unsubstantiated reports. At no point did
anyone remove Marteisha from Thomas’s custody, though the CPS did send police
officers to her home in response to Loge’s report that Thomas had threatened to kill
Marteisha.
During this period, teachers, school administrators and other personnel
frequently would call upon Sally Kivett, a special concerns counselor at the school,
to take Marteisha out of class to discuss her difficulties functioning and performing
at school. It is undisputed that Kivett did not inform Thomas of her conversations
with Marteisha until February 29, 2000. On that day Kivett met with Thomas,
Marteisha’s father, principal Loge, and guidance counselor Higgs, to discuss
Marteisha’s academic and behavioral issues. During the conference, Kivett related
to Thomas, who is African-American, that Marteisha had told her that Thomas had
called Marteisha a “bitch” and threatened, “Do bad, and I’ll hit you like a nigger in
the street.” Thomas denies that she ever said those words to Marteisha. Following
the conference, on March 1, 2000, Kivett called CPS to discuss her concerns about
Thomas’s treatment of Marteisha. She did not, however, report that Thomas had
committed child abuse or neglect.
Two years later, Thomas initiated this lawsuit against the school and its
officials. (She also unsuccessfully sued CPS officials in a separate lawsuit. Thomas
No. 07-2083 Page 3
v. Starks, 159 Fed. App’x 716 (7th Cir. 2005) (unpublished order).) In addition to
her claims that school officials had falsely reported child abuse and interfered with
her parental rights by privately meeting with her daughter, Thomas alleged in her
third amended complaint that the school had not allowed her to enroll her younger
children at Lodge in retaliation for her public complaints about the school. After
nearly three years of litigation, the district court granted the school’s motion for
summary judgment.
Thomas, who was represented by appointed attorneys in the district court,
proceeds pro se on appeal. She contends that the district court should have allowed
her to proceed to trial on her equal protection claims, her due process claim, and her
First Amendment retaliation claim. She also asserts that the court committed
various procedural errors. We address each of her contentions in turn.
Thomas first argues that the district court erred in concluding that no
reasonable jury could find that school officials discriminated against her on the
basis of her race, in violation of her right to equal protection under the law. To
survive summary judgment, Thomas had to adduce sufficient evidence from which a
jury could conclude that the school officials’ actions had a discriminatory effect and
were motivated by a discriminatory purpose. See Chavez v. Ill. State Police, 251
F.3d 612, 635-36 (7th Cir. 2001). Thomas had to come forward with some evidence
that she was treated differently than similarly situated parents who were not
African-American, and that the school officials filed the reports at least in part
because of her race. See id. at 636, 645. She did neither. Thomas did not identify a
single similarly situated parent, nor has she identified any credible evidence to
rebut the officials’ affidavit testimony that they had made the reports in good faith.
Indeed, Thomas has not come forward with any evidence that school officials were
motivated by her race. The only evidence that could possibly hint that Thomas’s
race was considered is that Kivett used the word “nigger” in repeating Thomas’s
alleged threat to hurt Marteisha. Although we have said that the use of racial slurs
can be strong evidence of racial animus, DeWalt v. Carter, 224 F.3d 607, 612 n.3
(7th Cir. 2000), Kivett was reporting verbatim what Marteisha had told her. That
indirect use of the slur, standing alone, is simply not enough evidence to support an
inference of discriminatory intent. And, in any event, Kivett never filed a report
with CPS.
Thomas also argues that the district court erred in rejecting her claim that
the school engaged in the widespread practice of discriminating against African-
American parents. To survive summary judgment on that claim, Thomas had to
produce enough evidence from which a jury could conclude that such discrimination
was “so pervasive that acquiescence on the part of policymakers was apparent and
amounted to a policy decision.” See Phelan v. Cook County, 463 F.3d 773, 790 (7th
Cir. 2006). Rather than showing a pervasive practice of discrimination, though,
No. 07-2083 Page 4
Thomas relies entirely on her own experiences—which, as we explained, she has not
shown were discriminatory. And although she avers that she has personal
knowledge of African-American parents experiencing similar treatment by school
officials, she does not identify those persons, nor has she identified any examples of
discriminatory treatment.
Thomas next argues that the district court erred in concluding that school
officials were entitled to qualified immunity on Thomas’s claims that counselor
Kivett’s private discussions with Marteisha violated Thomas’s substantive due
process right to direct the upbringing of her daughter. School officials were entitled
to qualified immunity if the facts, viewed in the light most favorable to Thomas,
show that Kivett’s conduct did not violate a constitutional right. See Scott v.
Harris, 127 S. Ct. 1769, 1774 (2007). If they did show a violation, we would next
ask whether the right was clearly established at the time. Id.
We need not proceed to the second step because Thomas has not shown that
counselor Kivett’s private discussions with Marteisha violated Thomas’s
constitutional rights. We agree that Thomas has a fundamental right, secured by
the due process clause, to direct the upbringing and education of her child. See, e.g.,
Troxel v. Granville, 530 U.S. 57, 65-66 (2000) (collecting cases). That right was
articulated in Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925), where the Supreme
Court declared unconstitutional an Oregon law requiring parents to send their
children to public schools, and in Meyer v. Nebraska, 262 U.S. 390 (1923), where the
Court held that a law restricting the instruction of foreign languages to children
violated parents’ rights to employ a teacher to instruct their child, see id. at 400.
But a right to choose the type of school one’s child attends, or to direct the private
instruction of one’s child, does not imply a parent’s right to control every aspect of
her child’s education at a public school. See Fields v. Palmdale Sch. Dist., 427 F.3d
1197, 1204-07 (9th Cir. 2005); Leebaert v. Harrington, 332 F.3d 134, 140-42 (2d Cir.
2003); Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 533-34 (1st Cir. 1995);
cf. Wisconsin v. Yoder, 406 U.S. 205, 232-33 (1972) (limiting state’s power over
education when it implicates parent’s rights under the Free Exercise Clause).
Kivett’s affidavit testimony shows that her discussions with Marteisha were
academic in nature, focusing only on her problems performing and functioning at
school. And Marteisha’s vague description of the conversations as “personal” in her
affidavit, signed at age 16, does not rebut that testimony. Because Thomas pointed
the court to no authority to support her claimed right to know about these
academically oriented conversations when they occurred, the district court correctly
concluded that the school officials were entitled to qualified immunity.
Thomas also argues that school officials denied her other children enrollment
at Lodge—they were placed in a different elementary school—in retaliation for
Thomas’s exercise of her First Amendment rights. But she has adduced no evidence
No. 07-2083 Page 5
to support the contention. James Trader, the Director of Student Services and
Counseling at the Evansville-Vanderburgh School Corporation, avers that the
decision was made to avoid confrontation between school staff and Thomas. Trader
believed such a step was necessary because he learned that Thomas had said that
she wished Trader would “have a heart attack and die” and that she wished
principal Loge’s breast cancer had killed her. Without evidence that even hints that
the decision was made for constitutionally impermissible reasons, the district court
properly dismissed the claim.
We next turn to Thomas’s disagreements with the district court’s handling of
various procedural matters. Her primary assertion, which she reiterates
extensively in her reply brief, is that the district court sua sponte granted summary
judgment without offering her an opportunity to cure the defects in her complaint.
But the court did not sua sponte grant summary judgment; the school moved for
summary judgment after extensive discovery on both sides, and the court
considered Thomas’s responses to the motion before granting it. Thomas also
argues that the court should have granted oral argument on the summary judgment
motion, but she has not shown that the district court abused its discretion in
denying it. See S.D. IND. R. 7.5(a). Thomas’s other procedural arguments—failing
to set a trial date pending the outcome of the summary judgment motion, allowing
extra pages in the school officials’ submissions, and failing to hold a status
conference after granting summary judgment—are all meritless.
Finally, Thomas appears to have abandoned her state law claims on appeal.
In any event, she has not shown that the district court abused its discretion in
declining to exercise supplemental jurisdiction over the state law claims after
dismissing the federal claims. See 28 U.S.C. § 1367(c)(3); Williams Elecs. Games,
Inc. v. Garrity, 479 F.3d 904, 906 (7th Cir. 2007).
AFFIRMED.