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T.L. v. Sherwood Charter School

United States District Court, D. Oregon

March 6, 2014

T.L., by and through her father and next friend, SHAUN LOWRY; G.L., by and through his father and next friend SHAUN LOWRY; SHAUN LOWRY, an individual; and ASHLEY LARSON, an individual, OPINION & Plaintiffs,
SHERWOOD CHARTER SCHOOL, an Oregon public charter school, and SHERWOOD CHARTER SCHOOL BOARD, Defendants.

Kevin C. Brague, KIVEL AND HOWARD, LLP, Portland, Oregon, Attorney for Plaintiff.

Steven A. Kraemer Mark C. Sherman, HART WAGNER LLP, Portland, Oregon, Attorneys for Defendant.


MARCO A. HERNANDEZ, District Judge.

In this civil rights action, Plaintiffs challenge actions taken by Defendants Sherwood Charter School and the Sherwood Charter School Board against Plaintiffs T.L. and G.L., both former students at the school. T.L and G.L appear through their next friend and father Shaun Lowry. Lowry and Ashley Larson, identified as T.L.'s and G.L's caregiver, bring additional claims against Defendants for actions taken against Lowry and Larson directly.

Defendants move to dismiss certain claims or portions of claims for failure to state a claim. I grant the motion as to the constitutional due process claim brought by Lowry and Larson, Lowry's intentional infliction of emotional distress claim, the breach of contract claim, and Lowry's, Larson's, and G.L.'s negligence claims. I otherwise deny the motion.


T.L. was a student at Sherwood Charter School (SCS). Plaintiffs contend that beginning in September 2011, Defendants had knowledge of a specific student attending SCS, referred to in the Second Amended Complaint by the initials "K.L., " who had severe behavioral and interpersonal boundary issues as well as a history of aggressive behavior. Sec. Am. Compl. at ¶ 8. Beginning in November 2011, Lowry communicated to SCS and its employees safety concerns about specific incidents occurring at SCS involving K.L. Id. at ¶ 9. Plaintiffs allege that Defendants retaliated against them in at least twelve ways after Lowry made these complaints. Id. at ¶ 10. On December 19, 2012, Lowry submitted a written complaint to SCS regarding the alleged actions by Defendants and requested that a formal investigation be conducted by an independent third party. Id. at ¶ 11. Plaintiffs allege that SCS refused to follow policy and allow for a proper investigation and further failed to complete any formal or proper investigation in violation of the policies of SCS, Sherwood School District 88J, and the Oregon Department of Education. Id.

Plaintiffs contend that as a result of Lowry's requests and his written complaint, SCS teachers either disciplined or threatened to discipline G.L. Id. at ¶ 12. Plaintiffs contend that the threat of punishment was made to drive Lowry and his children from the school and that these actions deprived T.L. and G.L of an education at SCS. Id . Plaintiffs allege further that as a result of Lowry's advocacy and complaints, SCS suspended T.L, and banned Lowry and Larson from SCS. Id. at ¶ 13. Plaintiffs allege that due to the hostility of SCS toward Plaintiffs, T.L. and G.L. were removed from SCS which deprived them of the enhanced curriculum at SCS, relationships with other students and faculty, eighth grade graduation, and all of the other aspects of the SCS educational environment. Id. at ¶ 15. T.L suffered emotional distress requiring counseling. Id . G.L. was removed from public school entirely and now receives an education from a privately paid tutor at personal expense to Lowry. Id . Other relevant facts are noted below.


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the claims. Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). "All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Am. Family Ass'n, Inc. v. City & Cnty. of S.F. , 277 F.3d 1114, 1120 (9th Cir. 2002). However, the court need not accept conclusory allegations as truthful. See Warren v. Fox Family Worldwide, Inc. , 328 F.3d 1136, 1139 (9th Cir. 2003) ("[W]e are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint, and we do not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations") (internal quotation marks, citations, and alterations omitted).

A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the "grounds" of his "entitlement to relief" with nothing "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action[.]" Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]" Id . (citations and footnote omitted).

To survive a motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face[, ]" meaning "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Additionally, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679. A complaint must contain "well-pleaded facts" which "permit the court to infer more than the mere possibility of misconduct[.]" Id. at 679.


Plaintiffs bring the following claims: (1) a claim by T.L. for peer on peer sexual harassment under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 ("Title IX"); (2) a Title IX retaliation claim brought by all Plaintiffs; (3) a 42 U.S.C. § 1983 claim brought by T.L., Lowry, and Larson alleging violations of their Fourteenth Amendment procedural and substantive due process rights; (4) a claim by G.L. under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a); (5) a claim by G.L. under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (ADA); (6) an intentional infliction of emotional distress (IIED) claim brought by T.L. and Lowry; (7) a breach of contract claim by Lowry; and (8) a negligence claim brought by all Plaintiffs. Sec. Am. Compl. at ¶¶ 18-67.

Defendants move to dismiss the following claims, or portions of claims: (1) the section 1983 due process claim as to Lowry and Larson; (2) the Rehabilitation Act and ADA claims to the extent they are based on alleged discriminatory actions occurring before October 11, 2012;

(3) the IIED claim; (4) the breach of contract claim; and (5) the negligence claim. I address the arguments in turn.

I. Section 1983 Claim

Plaintiffs contend that in retaliation for Lowry's complaints to SCS, Defendants prohibited Larson and Lowry from the SCS campus (including entering buildings, classrooms, school activities, and field trips). Sec. Am. Compl. at ¶¶ 10a, b. Plaintiffs allege that SCS had an unofficial policy, custom, or practice of barring parents, including Lowry and Larson, and other agents from coming onto the property because they were critical or negative of SCS's operations or decisions. Id. at ¶ 33. Plaintiffs contend that as a result of these unofficial policies, customs, or practices, they were denied the basic protections of the Fourteenth Amendment including notice and hearing before being denied their liberty and property interest in a public school education. Id. at ¶ 34.

Defendants argue that parents have no constitutional right to be on school premises. Accordingly, they move to dismiss the claim to the extent it is brought by Larson and Lowry. Moreover, without a substantive constitutional right at issue, there can be no procedural due process violation. In response to the motion, Larson withdraws her section 1983 claim, acknowledging that because she is not related by blood or marriage to T.L or G.L, she does not enjoy the same due process rights as a natural parent. Pls.' Resp. Mem. at 2. Lowry, however, argues that as a parent, he enjoys a liberty interest in the care and management of his children.

Parents have a fundamental liberty interest in the care, custody, and control of their children, including the right to control their children's education. Troxel v. Granville , 530 U.S. 57, 65-66 (2000) (plurality opinion) (noting that the liberty interest of parents "in the care, custody, and control of their children" "is perhaps the oldest of the fundamental liberty interests recognized by this Court" and that the liberty "protected by the Due Process Clause includes the right of parents to establish a home and bring up children and to control the education of their own.") (internal quotation marks omitted).

However, no court has extended a parent's fundamental liberty interest in the care of his or her children to a parental right to physically access a child's school. As the Western District of Michigan explained, "[w]hile Troxel does mention that parents have the right to direct and control the education of their children..., nothing in that decision suggests that it includes the right to go onto school property, even if doing so is necessary to participate in the child's education." Mejia v. Holt Pub. Schs., No. 5:01-CV-116 , 2002 WL 1492205, at *5-6 (W.D. Mich. Mar. 12, 2002); see also Lovern v. Edwards , 190 F.3d 648, 655-56 (4th Cir. 1999) (parent's claim that parent's constitutional parental rights were violated by school superintendent's barring parent from school premises held "plainly insubstantial and entirely frivolous"); Justice v. Farley, No. 5:11-CV-99-BR, 2012 WL 83945, at *3 (E.D. N.C. Jan. 11, 2012) ("While parents have a general constitutional right to direct their children's education without unreasonable interference by the states, this right is limited in scope and does not include the unfettered right to access school premises"; further noting that "[m]any courts have held that parents do not have a constitutional right to be on school premises" and citing cases) (citation omitted); appeal dismissed, 470 F.Appx. 136 (4th Cir. 2012); Porter v. Duval Cnty. Sch. Bd., No. 3:09-CV-285-J-32MCR, 2010 WL 1252177, at *7 (M.D. Fla. Mar. 26, 2010) ("Parents have no constitutional right to be on school premises"), aff'd, 406 F.Appx. 460 (11th Cir. 2010); Meadows v. Braxdale, No. A-08-CA-819-SS, 2010 WL 55974, at *5 (W.D. Tex. Jan. 4, 2010) ("although parents have a constitutional liberty interest in the care, custody, and control of their children, ' Troxel[ ], 530 U.S. [at] 65-66 [ ], neither the Supreme Court nor any other court has ever held the Constitution establishes a parental right to access a child's classroom or other school areas while school is in progress and other students are present").

Plaintiffs argue that the cases relied on by Defendants are distinguishable because they primarily involve (1) parents who were critical of the school administration and then interfered with school operations, (2) coaching, or (3) contacting employees at home. According to Plaintiffs, Lowry wanted to protect his daughter from sexual harassment and did not interfere with the education process or the classroom.

Not all of the relevant cases involve an abusive or interfering parent. For example, in Ryans v. Gresham , 6 F.Supp.2d 595 (E.D. Tex. 1998), the parent observed the child's class because she was concerned that her son was a victim of race discrimination. After one hour, the teacher requested that she leave. The parent refused and was arrested. The trespass charge was later dropped but the parents sued, contending that their constitutional rights were violated. As described by the court, the parents' claim "aims to establish that their constitutional right to direct their son's education imposes upon schools and school officials an obligation to permit them to attend his classes." Id. at 602. The court rejected the argument, explaining that "[a]n exhaustive review of the case law pertaining to the constitutional right of parents to direct the education of their children discloses no holding even remotely suggesting that this guarantee includes a right to access to the classes in which one's child participates." Id. at 601.

In Meadows, the parent was prevented from attending certain school activities and from entering the secure areas of the school because she refused to produce her driver's license in compliance with a school policy. She argued that cases concluding that parents do not possess a constitutional right to access school property were distinguishable because she had committed no illegal act, was not disruptive, violated no rule or policy, nor acted offensively. 2010 WL 55974, at *6. The court noted that the plaintiff had in fact violated a policy but also explained that although the facts of some of the cases "may involve some level of disruption or disturbance, " the holdings of those cases did not depend on those facts. Id . That is, the cases did not find "that when a parent has committed some bad act there is no constitutional right to access; rather, they [] find there is no constitutional right to access period." Id .; see also Frost v. Hawkins Cnty. Bd. of Educ. , 851 F.2d 822, 826-27 (6th Cir. 1988) (parent who had entered school to provide alternative reading curriculum to her child and who was arrested for trespass after continuing practice even though new policy prohibited it, had no constitutional claim).

Lowry possesses no substantive due process right to access school property, regardless of the purpose of his intended visit. Furthermore, because there is no constitutional right to be on school property, no procedural due process protections are required before prohibiting a parent's access. E.g., Justice, 2012 WL 83945, at *3 (school not required to provide notice or hearing before banning parent from entering school property when the ban did not deprive the parent of a life, liberty, or property interest); Mejia , 2002 WL 1492205, at *7 (procedural due process does not require school district to provide parents with notice and hearing before denying them access to school property). I grant Defendants' motion as to the substantive and procedural due process claims as to Lowry and Larson.

II. Section 504 Rehabilitation Act and ADA Claims

Plaintiffs assert that G.L has a disability and that SCS violated both the Rehabilitation Act and the ADA by failing to provide him with reasonable accommodation. Sec. Am. Compl. at ¶¶ 38-43 (Rehabilitation Act Claim); Id. at ¶¶ 44-49 (ADA Claim).

Defendants argue that because a one-year statute of limitations applies to these claims, the claims must be dismissed to the extent they are based on events occurring before October 11, 2012. The parties agree that neither the Rehabilitation Act nor the ADA has its own statute of limitations. Pickern v. Holiday Quality Foods Inc. , 293 F.3d 1133, 1137 n.2 (9th Cir. 2002) (ADA contains no statute of limitations); see Douglas v. Cal. Dep't of Youth Auth. , 271 F.3d 812, 823 n.11 (9th Cir.) (statute of limitations for Rehabilitation Act claim provided by analogous state law because Rehabilitation Act does not contain its own), amended, 271 F.3d 910 (9th Cir. 2001). The parties also agree that when a federal statute lacks its own statute of limitations, courts apply the statute of limitations of the most analogous state law. Wilson v. Garcia ...

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