Warner v. School Board of Hillsborough County, Florida

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDURAT

TAMPA DIVISION

BLAKE ANDREW WARNER,

Plaintiff,

v. CASE NO. 8:23-cv-181-SDM-UAM

THE SCHOOL BOARD OF

HILLSBOROUGH COUNTY,

FLORIDA,

Defendant.

___________________________________/

ORDER

In his second amended complaint (Doc. 38), Blake Warner, appearing pro se,

asserts nine claims against the Hillsborough County School Board, and Warner

moves (Doc. 40) for a preliminary injunction that either “force[s]” the School Board

to enroll Warner’s child at Carrollwood K-8 or enjoins the School Board from “im-

plementing the recently promulgated Carrollwood K-8 format change . . . .” In a

thorough report, the magistrate judge recommends (Doc. 72) dismissing each claim

other than Warner’s equal protection claim (Count VII) and denying the motion for

a preliminary injunction. Warner objects (Doc. 76) to the dismissal of Warner’s Fair

Housing Act claims (Counts I and II), of Warner’s Equal Educational Opportunities

Act claim (Count III), and of Warner’s due process claim (Count VI). Also, Warner

objects to the denial of his motion for a preliminary injunction.

A careful, de novo review of the report reveals no error. As the report ex-

plains, the conduct that Warner challenges is “too remote” to support any of

Warner’s Fair Housing Act claims. Warner contends that the report omitted a “fore-

seeability” analysis, but Bank of America Corp. v. City of Miami, Florida, 581 U.S. 189,

202 (2017), holds that “foreseeability alone” is not sufficient to support a Fair Hous-

ing Act claim. Instead, “the [Fair Housing Act] requires ‘some direct relation be-

tween the injury asserted and the injurious conduct alleged.” Bank of America, 581

U.S. at 202–03. The report correctly determines (1) that the School Board lacks di-

rect control over the availability of housing and (2) that Warner offers no “causal

link evidencing racial discrimination in connection with the provision of any services

related to housing or the denial of housing rights[.]”

Also, a de novo review confirms the other challenged portions of the report.

Warner contends that, as the parent of a child in the public-school system, he may

assert an Equal Educational Opportunities Act claim on his own behalf. The analy-

sis on pages twenty-one through twenty-three of the report explains (in accord with

several persuasive decisions) that “the plain language of [the Equal Educational Op-

portunities Act] does not encompass a cause of action for parents to sue for the loss

of an equal educational opportunity of a child.”

Similarly, Warner contends that the School Board’s not permitting him to sub-

mit a “school choice application” to enroll his child in Carrollwood K-8 violates

Warner’s right to due process. The report on pages twenty-nine through thirty-one

determines that Warner presents no basis establishing that “school choice and

hardship policies provide rights protected by the United States Constitution.” Citing

Stevenson v. Blytheville Sch. Dist. #5, 800 F.3d 955 (8th Cir. 2015), Warner responds

that he enjoys a property interest in enrolling his child in a preferred school through a

“school choice” application. But Stevenson holds that parents, who asserted a due

process claim based on a “broad school choice transfer option,” established neither a

liberty nor property interest in “public school choice.” See Adkisson v. Blytheville Sch.

Dist. No. 5, 2014 WL 6819729, at *15 (E.D. Ark. 2014) (Baker, J.) (finding no author-

ity establishing that a parent has a “fundamental right or liberty” to “choose where

his or her child is educated within the public school system”).

A review of the remaining portions of the report reveals no error. For these

reasons and others stated by the magistrate judge, the report and recommendation

(Doc. 72) is ADOPTED. The motion (Doc. 45) to dismiss is GRANTED-IN-

PART. Counts I, II, V, VI, VIII, and IX are DISMISSED WITH PREJUDICE.

Counts III and IV are DISMISSED WITHOUT PREJUDICE as to Warner’s as-

serting through counsel these claims on behalf of his child. The motion (Doc. 40) for

a preliminary injunction is DENIED WITHOUT PREJUDICE. This action pro-

ceeds as to Warner’s equal protection claim (Count VII). No later than JULY 1,

2024, Warner may amend the complaint in accord with the report and this order.

The School Board must respond in accord with Rule 15(a)(3), Federal Rules of Civil

Procedure.

In the objection, Warner requests a final judgment as to Warner’s due process

claim if an order adopts the report and recommendation. Warner wants to appeal

the dismissal of the claim “while his child is still in middle school.” Rule 54(b), Fed-

eral Rules of Civil Procedure, permits the entry of judgment as to fewer than all

claims “only if the court expressly determines that there is no just reason for delay.”

Lloyd Noland Foundation, Inc. v. Tenet Health Care Corp., 483 F.3d 773, 778 (11th Cir.

2007), explains that “[t]he district court must act as a ‘dispatcher’ and exercise its dis-

cretion in certifying partial judgments in consideration of ‘judicial administrative in-

terests’ — including ‘the historic federal policy against piecemeal appeals’ — and ‘the

equities involved.’” Despite the potential for some delay, several reasons, such as

“the relationship between the adjudicated and unadjudicated claims” and the in-

creased cost for both parties, counsel against certifying a partial judgment for imme-

diate appeal. See In re Fifth Third Early Access Cash Advance Litig., 925 F.3d 265, 275

(6th Cir. 2019) (commending for review a “non-exhaustive list of factors” that a dis-

trict court might use to determine whether to certify a partial judgment). Warner’s

request, construed as a request for a partial judgment under Rule 54(b), is DENIED.

ORDERED in Tampa, Florida, on June 7, 2024.

STEVEND.MERRYDAY __

UNITED STATES DISTRICT JUDGE

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