Stanford v. Northmont City Schools

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

SHARON STANFORD, et al.,

Plaintiffs, Case No. 3:19-cv-399

vs.

NORTHMONT CITY SCHOOL District Judge Michael J. Newman

DISTRICT, et al.,

Defendants.

______________________________________________________________________________

ORDER: (1) GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

(Doc. No. 99) ON ALL FEDERAL CLAIMS; (2) DISMISSING WITHOUT PREJUDICE

PLAINTIFFS’ REMAINING STATE LAW CLAIM FOR LACK OF SUPPLEMENTAL

JURISDICTION; AND (3) TERMINATING THIS CASE ON THE DOCKET

______________________________________________________________________________

This 42 U.S.C. § 1983 civil rights case concerns two local high school students suspended

for ten days (but not expelled) by Northmont High School for violating the school’s marijuana

policy.1 The two high school students—both of whom are African American, minors, and referred

to here by their initials, J.S. and J.E.—claim, inter alia, that they were unconstitutionally searched

in violation of the Fourth Amendment and on account of their race, and wrongly suspended. J.S.,

J.E., and their parents—also named as Plaintiffs in this lawsuit—name as Defendants the

Northmont City School District (“School District”), and Northmont High School’s Assistant

Principal James Chad Kaltenbach (“Kaltenbach”). Now before the Court is Defendants’ motion

for summary judgment. Doc. No. 99. Plaintiffs, through counsel, responded in opposition. Doc.

No. 102. Defendants replied, Doc. No. 103, and this matter is ripe for review. For the reasons that

follow, the Court, having carefully reviewed the undisputed facts of this matter, finds in favor of

1 Northmont High School is in Clayton, Ohio, near Dayton.

Defendants on the federal claims pled here, and dismisses without prejudice the sole remaining

state law claim.

I.

A. Undisputed Facts

1. J.S.’s Suspension

The School District, in its student handbook for Northmont High School, forbids students

from “com[ing] to school . . . with the smell of . . . marijuana on his/her breath/person.” Doc. No.

99-1 at PageID 2519. The punishment for violating this provision is a ten-day suspension.2 Id.

J.S. was in ninth grade at Northmont High School on February 19, 2019. Doc. No. 61 at

PageID 1473. That day, he missed the bus and rode to school in a car with friends, all Northmont

High School students. Id. Once J.S. arrived at Northmont High School, Kaltenbach received a

report from a secretary that he and his friends smelled like marijuana. Doc. No. 91 at PageID

2089; Doc. No. 99-2 at PageID 2522.

Kaltenbach—right after a second teacher told him that J.S. smelled like marijuana—went

to J.S.’s classroom and called him into his office. Doc. No. 61 at PageID 1475; Doc. No. 91 at

PageID 2089–90; Doc. No. 98 at PageID 2244. In his office, Kaltenbach explained to J.S. the

allegations and then told him to empty his backpack and pockets. Doc. No. 91 at PageID 2091.

Kaltenbach testified at his deposition that he “clearly” smelled marijuana on J.S. before he began

the search. Id. He sniffed J.S.’s left hand and found that it smelled like marijuana; he further

called a school resource officer into the office to sniff J.S.’s hand. Doc. No. 61 at PageID 1476,

1477; Doc. No. 89 at PageID 2041; Doc. No. 98 at PageID 2226. That officer agreed. Doc. No.

2 Students violating this provision are recommended to the superintendent for expulsion, too. See Doc. No.

98 at PageID 2519. However, neither J.S. nor J.E. were expelled, as the School District found that expulsion

was not warranted here. Id. at PageID 2368–69; Doc. No. 61 at PageID 1479. Thus, this provision is

irrelevant to Plaintiffs’ claims, and it is not implicated here.

98 at PageID 2226.

Kaltenbach next asked J.S. to explain why he smelled like marijuana. Id. at PageID 2225.

J.S. refused to speak with him. Id. Kaltenbach then called J.S.’s father, explained the situation,

and had J.S. wait in his office until J.S.’s father arrived. Id.; Doc. No. 61 at PageID 1477; Doc.

No. 99-1 at PageID 2518, 2521.

Once J.S.’s father arrived, Kaltenbach informed J.S. that he was suspended for ten days for

violating Northmont High School’s marijuana policy. Doc. No. 98 at PageID 2226; Doc. No. 99-

1 at PageID 2518, 2521. J.S.’s suspension paperwork, as Kaltenbach explained to him, listed his

right to appeal the suspension to the School District’s Board of Education. Doc. No. 98 at PageID

2226; Doc. No. 99-1 at PageID 2521.

2. J.E.’s Suspension

J.E. was in tenth grade at Northmont High School on January 22, 2020. Doc. No. 85 at

PageID 1871.3 That day, Assistant Principal Teresa Dillon (“Dillon”) received a call from two

teachers who, after receiving comments from other students, told her that J.E. smelled like

marijuana. Doc. No. 85 at PageID 1873–74; Doc. No. 90 at PageID 2060; Doc. No. 98 at PageID

2265. She called him to her office. Doc. No. 90 at PageID 2060. Once J.E. arrived at Dillon’s

office, she determined he smelled like marijuana. Id.; Doc. No. 98 at PageID 2265–66.

She began to search J.E.’s belongings—asking him to empty his backpack and pockets; lift

up his pant legs; and take his shoes and socks off. Doc. No. 90 at PageID 2060. Like Kaltenbach,

Dillon called over a school resource officer—along with Eric Hughes, a school administrator—

who corroborated the smell. Id. Dillon called Kaltenbach to her office and he, too, noted that J.E.

3 Although this lawsuit was filed in 2019, Plaintiffs filed an amended complaint—adding J.E. and his

mother as Plaintiffs—on November 25, 2020. See Doc. No. 23. Thus, those events are properly before this

Court.

smelled like marijuana. Id. at PageID 2069; Doc. No. 98 at PageID 2268. Kaltenbach also noted

that J.E. was glassy-eyed. Doc. No. 90 at PageID 2069; Doc. No. 98 at PageID 2268. J.E. protested

that he only smelled like marijuana because his stepfather smoked and alleged that his hand lotion

was the source of the odor. Doc. No. 85 at PageID 1874. However, everyone in the office

confirmed that J.E. smelled like marijuana, and Dillon would later testify that the “slight” smell of

lotion did not overcome the marijuana smell nor his “glassy eye[d]” appearance. Doc. No. 90 at

PageID 2060.

Dillon gave J.E. a ten-day suspension notice. Id. at PageID 2060–61. She offered J.E. a

chance to explain his “side of the story.” Doc. No. 98 at PageID 2263. Then, she called J.E.’s

mother, and, after she arrived, explained to her the suspension and how J.E. could make up any

missed assignments. Doc. No. 90 at PageID 2061.4

B. Procedural History

J.S. and J.E. appealed their suspensions in formal hearings, represented by counsel, to the

Board of Education. See id. at PageID 2223, 2259. Both lost their appeals, so they appealed those

decisions to the Montgomery County, Ohio Common Pleas Court. See Doc. Nos. 99-2, 99-3. The

state trial court found that neither suspension violated the two students’ constitutional rights, but

found the cases moot. See Doc. No. 99-2 at PageID 2529–32; Doc. No. 99-3 at PageID 2541–42.

When J.S. appealed (but J.E. did not), the Second District Court of Appeals affirmed on mootness

alone. See Stanford v. Northmont City Schs., No. 28884, 2021 WL 1054123, at *4 (Ohio Ct. App.

Mar. 19, 2021).

J.S. and his parents filed suit here on December 23, 2019. Doc. No. 1. They added J.E.

4 It is unclear if either J.S. or J.E. received prior discipline for a marijuana-related offense, but they received

discipline in the past for violating school policy. See Doc. No. 61 at PageID 1486; Doc. No. 98 at PageID

2370–90.

and his mother as plaintiffs in their second amended complaint, filed on November 25, 2020. See

Doc. No. 23. Their second amended complaint alleged state law claims against the City of Clayton,

Ohio, but this Court recently dismissed those claims with prejudice. Doc. Nos. 23, 83. Now

pending are Plaintiffs’ remaining claims against Kaltenbach and the School District: (1) a § 1983

claim alleging the School District deprived J.S. and J.E. of their federal right to education through

searching and suspending them; (2) Fourth Amendment claims, under the federal and Ohio

constitutions, challenging the searches of J.S. and J.E.; (3) Due Process Clause claims challenging

how J.S. and J.E. were suspended; (4) Title VI claims alleging racial discrimination in suspending

J.S. and J.E. in comparison to white students—claims which rely on statistics, several incidents

outside of the suspensions, and two potential comparators; (5) Equal Protection Clause claims,

relying on the same allegations of race discrimination as the Title VI claims; and (6) a state law

negligent supervision claim against the School District for mishandling its supervision of

Kaltenbach in a manner that caused J.S. and J.E. harm. Doc. No. 23 at PageID 617–30.

II.

“Summary judgment is only appropriate ‘if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.’” Keweenaw Bay Indian Cmty. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007) (quoting

Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005)). Once “a motion for summary

judgment is properly made and supported, an opposing party[.]” Alexander v. CareSource, 576

F.3d 551, 558 (6th Cir. 2009) (quoting Fed. R. Civ. P. 56(e)). Instead, the party opposing summary

judgment has a shifting burden and “must—by affidavits or as otherwise provided in [Fed. R. Civ.

P. 56]—set out specific facts showing a genuine issue for trial.” Id. The Court does not have to

“search the entire record to establish that it is bereft of a genuine issue of material fact.” Guarino

v. Brookfield Twp. Trs., 980 F.2d 399, 404 (6th Cir. 1992) (citations omitted).

42 U.S.C. § 1983 allows citizens to sue for constitutional violations. See Wurzelbacher v.

Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012). To state a § 1983 claim, a plaintiff must: (1)

allege the violation of a constitutional or federal right; and (2) show that the alleged deprivation

was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

“[Q]ualified immunity protects government officials ‘from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It shields “all but the plainly

incompetent or those who knowingly violate the law.” District of Columbia v. Wesby, --- U.S. --

-, 138 S. Ct. 577, 589 (2018). To defeat qualified immunity, a plaintiff must show “(1) that the

official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’

at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting

Harlow, 457 U.S. at 818). The Court may “address these requirements in either order[,]” and [i]f

one is lacking, [the Court] need not address the other.” Crawford v. Tilley, 15 F.4th 752, 760 (6th

Cir. 2021) (citation omitted) (citing Pearson, 555 U.S. at 236).

III.

Summary judgment is warranted for multiple reasons. First, regarding § 1983, Plaintiffs’

constitutional rights were not violated, so Defendants are entitled to qualified immunity.5 J.S.’s

5 Two things are worth noting. First, Plaintiffs seemingly allege Monell liability claims about the School

District’s high school student handbook in their amended complaint, and they renew these claims at

summary judgment. See Doc. No. 23 at PageID 618; Doc. No. 102 at PageID 2638. Because Defendants

did not violate Plaintiffs’ constitutional rights, the Monell claims fail as a matter of law. See Robertson v.

Lucas, 753 F.3d 606, 622 (6th Cir. 2014). Second, Plaintiffs do not indicate whether they sue Kaltenbach

in his individual or official capacity. See, e.g., Doc. No. 23. This proves unremarkable, however, because

he is entitled to summary judgment on Plaintiffs’ constitutional claims.

parents and J.E.’s mother are not proper § 1983 plaintiffs, and there is no federal right to receive a

public education. Plaintiffs’ Fourth Amendment claims fail, as the School District’s agents had

more than reasonable suspicion to perform these minimally intrusive searches.6 The School

District also comported with due process, through its agents, by explaining the charges—and the

evidence proving that they violated the marijuana policy—before giving the two students an

opportunity to tell their side of the story. Second, Plaintiffs’ Title VI claims also fall short as a

matter of law—Kaltenbach cannot be sued under Title VI; Plaintiffs identify no relevant

comparators; and there is no evidence of intentional discrimination. Third, Plaintiffs’ equal

protection claims fail because, again, they cannot identify comparators or evidence of intentional

discrimination. Finally, the Court declines to exercise supplemental jurisdiction over the

remaining state law claim.

A. The Parents’ § 1983 Claims

“In the Sixth Circuit, a section 1983 cause of action is entirely personal to the direct victim

of the alleged constitutional tort.” Claybrook v. Birchwell, 199 F.3d 350, 357 (6th Cir. 2000)

(citations omitted). Thus, “only the purported victim, or his [or her] estate’s representative(s), may

prosecute a section 1983 claim.” Id. J.S.’s and J.E.’s parents are named as plaintiffs, along with

6 One might wonder whether res judicata, under Ohio law, would bar the constitutional claims. It remains

unclear whether it would, because Plaintiffs’ suspension appeals were ultimately dismissed as moot, even

though the state trial court also found no constitutional violation. See, e.g., Remus Joint Venture v. McNally,

116 F.3d 180, 184 n.5 (6th Cir. 1997) (“If a first decision is supported both by findings that deny the power

of the court to decide the case on the merits and by findings that go to the merits, preclusion is inappropriate

as to the findings on the merits” (quotation omitted)). Ohio follows the Second Restatement of Judgments,

which forbids res judicata where a decision rests both on the merits and a jurisdictional ground, like

mootness. See State ex rel. Davis v. Pub. Emps. Ret. Bd., 899 N.E.2d 975, 983 (Ohio 2008); Restatement

(Second) of Judgments § 27 cmt. o (Am. Law. Inst. 1982); see also, e.g., Croce v. N.Y. Times Co., 930 F.3d

787, 792 (6th Cir. 2019) (“If the Ohio Supreme Court has not provided guidance on the issue at hand, we

may consider . . . other sources such as ‘restatements of law[.]’” (quoting Mazur v. Young, 507 F.3d 1013,

1016–17 (6th Cir. 2007))). While “conflicting judgments might undermine notions of federalism and

comity[,]” Remus, 116 F.3d at 186–87 (Wellford, J., concurring), this proves inconsequential because

Plaintiffs were not deprived of their constitutional rights. Accordingly, the Court need not wade into this

thicket today.

J.S. and J.E., alleging constitutional claims under § 1983 against the School District and

Kaltenbach based solely on J.S. and J.E.’s harms. Doc. No. 23 at PageID 603, 617–25. They

cannot. See Claybrook, 199 F.3d at 357; Foos v. City of Delaware, 492 F. App’x 582, 592–93 (6th

Cir. 2012). Defendants are, thus, entitled to summary judgment on J.S.’s and J.E.’s parents’

§ 1983 claims.7

B. Federal Right to Access Public Education

J.S. and J.E. claim an “infringement” of “the right to access public education” under

§ 1983. Doc. No. 23 at PageID 618. “Education, of course, is not among the rights afforded

explicit protection under [the] Federal Constitution. Nor [is there] any basis for saying it is

implicitly so protected.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973); see

also, e.g., Gary B. v. Whitmer, 957 F.3d 616, 648–49 (6th Cir. 2020), reh’g en banc granted,

vacated by, 958 F.3d 1216 (mem.) (6th Cir. 2020) (vacating decision that found a federal right to

a minimum public education only insofar as it gave access to literacy). Accordingly, Defendants

are entitled to summary judgment on this claim.

C. Fourth Amendment Claims

The Fourth Amendment protects “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures[.]” U.S. Const. amend. IV.

It “extends this constitutional guarantee to searches and seizures by state officers, including public

school officials.” Vernonia Sch. Dist. 47 v. Acton, 515 U.S. 646, 652 (1995) (citations omitted).

7 To be fair, Plaintiffs could seek to amend the complaint to clarify that the parents are only named as parties

so that their minor children’s claims could be brought through them. However, that amendment would be

futile for two reasons. First, “parents cannot appear . . . on behalf of their minor children” for a § 1983

claim “because a minor’s personal cause of action is her own and does not belong to her parent or

representative.” Shepherd v. Wellman, 313 F.3d 963, 971 (6th Cir. 2002) (citing Cheung v. Youth Orchestra

Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990)); see also B.A.P. v. Overton Cnty. Bd. of Ed., 600

F. Supp. 3d 839, 845 (M.D. Tenn. 2022). Second, any such amendment would be futile because, as

discussed herein, the School District and Kaltenbach did not violate J.S.’s or J.E.’s constitutional rights.

But there is “a relaxed standard for searches in the school setting[.]” G.C. v. Owensboro Pub.

Schs., 711 F.3d 623, 632 (6th Cir. 2013). Indeed, the Court need not strictly adhere “to the

requirement that searches be based on probable cause to believe that the subject of the search has

violated or is violating the law. Rather, the legality of a search of a student should depend simply

on the reasonableness, under all the circumstances, of the search.” New Jersey v. T.L.O., 469 U.S.

325, 341 (1985). This inquiry employs a two-part test. The Court: (1) asks “whether the . . . action

was justified at its inception”; and (2) “determine[s] whether the search as actually conducted ‘was

reasonably related in scope to the circumstances which justified the interference in the first

place[.]’” Id. (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)). “A student search is justified in its

inception when there are reasonable grounds for suspecting that the search will garner evidence

that a student has violated or is violating the law or the rules of the school, or is in imminent danger

of injury on school premises.” Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 495–96 (6th

Cir. 2008). A search is “permissible in scope when the measures adopted are reasonably related

to the objectives of the search and not excessively intrusive in light of the age and sex of the student

and the nature of the infraction.” T.L.O., 469 U.S. at 342. “In determining whether a search is

excessive in its scope, the nature and immediacy of the governmental concern that prompted the

search is considered.” G.C., 711 F.3d at 632 (quoting Brannum, 516 F.3d at 497).

It is beyond genuine dispute that J.S., by smelling strongly of marijuana while on school

grounds, “violat[ed]” the School District’s rules. Brannum, 516 F.3d at 495; Doc. No. 61 at

PageID 1476, 1477; Doc. No. 89 at PageID 2041; Doc. No. 98 at PageID 2225–26. Normally, the

smell of marijuana establishes probable cause to search for evidence of that drug. See, e.g., United

States v. Garza, 10 F.3d 1241, 1246 (6th Cir. 1993); United States v. Vaughn, 429 F. Supp. 3d 499,

511–12 (E.D. Tenn. 2019) (collecting cases). Considering the scent here would meet that

heightened standard, Kaltenbach’s limited search through J.S.’s pockets, backpack, and shoes—

even if that search did not reveal marijuana—“was reasonably related” to J.S.’s odor and the

School District’s goal of eliminating contraband from Northmont High School. T.L.O., 469 U.S.

at 341; see also, e.g., Rinker v. Sipler, 264 F. Supp. 2d 181, 187–90 (M.D. Pa. 2003)

(individualized suspicion existed to search student’s locker, belongings, and person where he

smelled like marijuana and exhibited signs of marijuana use).

The same applies to J.E. He, too, smelled strongly of marijuana. Doc. No. 90 at PageID

2069; Doc. No. 98 at PageID 2268. His glassy-eyed appearance added further suspicion that he

used—and possibly possessed—marijuana. Doc. No. 90 at PageID 2060. Thus, the School

District’s officials could search him for marijuana. See, e.g., Garza, 10 F.3d at 1246; Bridgman v.

New Trier High Sch. Dist. No. 203, 128 F.3d 1146, 1149–50 (7th Cir. 1997) (school could drug

test student with bloodshot eyes, red pupils, and odd demeanor).

J.S. alleges that Kaltenbach patted down his pants and pockets, but no evidence in the

record supports this assertion. See Doc. No. 23-2 at PageID 848; Doc. No. 61 at PageID 1475–

76; Doc. No. 99-1 at PageID 2526–27. Even if Kaltenbach did so, several individuals detected a

strong odor of marijuana emanating from J.S. A pat down would, thus, be reasonably related to

the School District’s prevailing interest in removing narcotics from school grounds. See, e.g.,

Widener v. Frye, 809 F. Supp. 35, 37–38 (S.D. Ohio 1992) (upholding search and seizure of student

for smelling like marijuana where the search involved taking off his pants in front of security

guards away from his classmates), aff’d, 12 F.3d 215 (6th Cir. 1993) (unpublished table decision).

J.S. and J.E. contend that “[g]iven the legality and widespread prevalence of marijuana,

simply smelling like it does not give rise to reasonable suspicion that a student possesses

contraband.” Doc. No. 102 at PageID 2641. The Court disagrees. First, marijuana is illegal to

possess in Ohio. Ohio Rev. Code § 2925.11(C)(3).8 Second, just because an illegal substance is

widespread does not mean that any officer, investigating potential violations of criminal law, lacks

probable cause to search for it if he or she observes signs that it is nearby. See, e.g., United States

v. Fieck, 54 F. Supp. 3d 841, 843–44 (W.D. Mich. 2014) (finding that, even though medical

marijuana was legal in Michigan, scent of marijuana provided probable cause to search). Whether

marijuana is widespread still does not matter to schools, which have an interest in eradicating

narcotics from their halls, so the Court will not carve out an exception to the rule that the scent of

marijuana provides probable cause to search. See Garza, 10 F.3d at 1246; Vaughn, 429 F. Supp.

3d at 511–12; cf. Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S.

822, 839 (2002) (Breyer, J., concurring) (“[T]he drug problem in our Nation’s schools is serious

in terms of size, the kinds of drugs being used, and the consequences of that use both for our

children and the rest of us”). Accordingly, the searches were constitutional, and Defendants are

entitled to qualified immunity. See, e.g., Crawford, 15 F.4th at 760.9

D. Fourteenth Amendment Claims

“[S]tudents facing suspensions of ten days or fewer have a property interest in educational

benefits and a liberty interest in their reputations to qualify them for protection against arbitrary

suspensions under the Due Process Clause.” Heyne v. Metro. Nashville Pub. Schs., 655 F.3d 556,

564 (6th Cir. 2011) (citing Goss v. Lopez, 419 U.S. 565, 576 (1975)). “[O]nce school

administrators tell a student what they heard or saw, ask why they heard or saw it, and allow a

8 It is legal medicinally when authorized, see Ohio Rev. Code § 2925.11(B)(1)(d), but there is no evidence

that either J.S. or J.E. were authorized to possess medical marijuana, and that would not affect the School

District’s authority to search either student. See, e.g., United States v. Fieck, 54 F. Supp. 3d 841, 843–44

(W.D. Mich. 2014).

9 Plaintiffs cannot maintain their claim under Ohio’s constitution because § 1983 “does not cover conduct

that allegedly violates state law.” Neinast v. Bd. of Trs. of Columbus Metro. Library, 346 F.3d 585, 597

(6th Cir. 2003) (quoting Huron Valley Hosp., Inc. v. City of Pontiac, 887 F.2d 710, 714 (6th Cir. 1989)).

brief response, a student has received all the process that the Fourteenth Amendment demands.”

Buchanan v. City of Bolivar, 99 F.3d 1352, 1359 (6th Cir. 1996) (quoting C.B. v. Driscoll, 82 F.3d

383, 386 (11th Cir. 1996)). In sum, “all that a school official must do is give (1) adequate notice

of the charge against the student, (2) an explanation of the evidence supporting the charge and (3)

an opportunity for the student to respond.” Williams ex rel. Allen v. Cambridge Bd. of Educ., 370

F.3d 630, 639 (6th Cir. 2004) (citations omitted). However, the school must follow

“fundamentally fair procedures” before suspension, meaning “school officials responsible for

deciding whether to exclude a student from school must be impartial.” Heyne, 655 F.3d at 567

(citations omitted).

It is undisputed that J.S. and J.E. received due process. The record shows that Kaltenbach

and Dillon told J.S. and J.E., respectively, that they smelled like marijuana, in violation of the

School District’s policy; informed them that multiple individuals corroborated this fact; and gave

them a chance to respond before explaining their suspensions, giving them “all the process that the

Fourteenth Amendment demands.” Buchanan, 99 F.3d at 1359; Doc. No. 61 at PageID 1477; Doc.

No. 85 at PageID 1874; Doc. No. 90 at PageID 2261; Doc. No. 98 at PageID 2225, 2263; Doc.

No. 99-1 at PageID 2518, 2521; see also Granger v. Klein, 197 F. Supp. 2d 851, 875–76 (E.D.

Mich. 2002) (granting summary judgment on student’s due process claim where he was told twice

that he was being suspended for violating the school’s sexual harassment policy).

J.S. and J.E. nonetheless argue the following actions, in their view, violated due process:

(1) Defendants did not stay the suspensions pending appeal; (2) they issued notices to suspend

without further factual inquiry; (3) they unconstitutionally searched J.E. and J.S.; (4) they ignored

Kaltenbach’s alleged misconduct in cases unrelated to J.E.’s or J.S.’s suspensions; (5) they ignored

Kaltenbach’s alleged bias against the J.S. over a controversy involving J.S.’s sister and her

participation in gym class; (6) J.S. and J.E. were unaware “that smelling like marijuana would be

deemed illegal behavior”; (7) “no administrator has ever disagreed that a student smells like

marijuana”; (8) the School District purportedly violated Ohio law by not “act[ing] on suspensions

in [an] open hearing”; and (9) other alleged misconduct that occurred during the suspension

appeals. Doc. No. 102 at PageID 2636–37. None of these arguments are persuasive. The School

District’s actions after imposing the ten-day suspensions are irrelevant to J.S.’s and J.E.’s due

process claims. See, e.g., Heyne, 655 F.3d at 569–70 (reversing denial of qualified immunity on

due process claim where alleged misconduct occurred after the student was suspended). Indeed,

the Due Process Clause does not require “truncated trial type-procedures” for ten-day suspensions,

Goss, 419 U.S. at 583, so offering J.S. and J.E. full explanations and a chance to respond gave

them “all the process” they were due. Buchanan, 99 F.3d at 1359; see also Smartt v. Clifton, No.

C-3-96-389, 1997 WL 1774874, at *15–16 (S.D. Ohio Feb. 10, 1997) (school was not required to

allow right to appeal prior to imposing suspension).

Furthermore, the record reveals no bias from Kaltenbach. Granted, “[p]rocedural due

process is not satisfied when a person has a protected interest under the Due Process Clause and

the individual responsible for deciding whether to deprive that person of his interest is biased.”

Heyne, 655 F.3d at 566 (citations omitted). But J.S. and J.E. merely state—without any support

in the record—that Kaltenbach held a bias against them because he participated in a decision

denying J.S.’s sister the ability to wear certain pants during gym class. Doc. No. 63 at PageID

1547. Because “[a]ny alleged prejudice on part of the [decisionmaker] must be evident from the

record and cannot be based in speculation or inference[,]” they have not demonstrated there is a

genuine issue of material fact as to Kaltenbach’s impartiality based on alleged unrelated

misconduct and incidents. Doe v. Cummins, 662 F. App’x 437, 450 (6th Cir. 2016) (quoting Nash

v. Auburn Univ., 812 F.2d 655, 665 (11th Cir. 1987)); see also, e.g., Doe v. Univ. of Cincinnati,

173 F. Supp. 3d 586, 602 (S.D. Ohio 2016) (noting that “Plaintiffs’ mere belief that Defendants’

acted with ulterior motives” in suspending them from school did not state bias, considering school

officials receive “a presumption of honesty and impartiality” (citation omitted)). Considering this,

Defendants shall receive summary judgment on this claim, and they are entitled to qualified

immunity. See, e.g., Crawford, 15 F.4th at 760.

E. Title VI Claims

Under Title VI, “[n]o person in the United States shall, on the ground of race . . . 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. § 2000(d). Title VI

applies to a “recipient” of federal funding, which includes a public educational entity. See 34

C.F.R. §§ 100.13(i), 100.3(b); Zeno v. Pine Planes Cent. Sch. Dist., 702 F.3d 655, 664 (2d Cir.

2012).

Plaintiffs10 claim that the School District violated Title VI in suspending and searching

J.S. and J.E., and they raise several allegations to indirectly demonstrate the School District’s racial

discrimination against them:

• Allegations that two other Caucasian students—one who was caught owning a

marijuana vape pen, the other who allegedly smoked marijuana at school—were

not suspended or punished as harshly (Doc. No. 102 at PageID 2644–45);

10 It is unclear whether only J.S. and J.E. raise these Title VI claims, or if their parents also bring claims

under this provision, because Plaintiffs only raise allegations with reference to J.S. and J.E. Generally,

parents lack standing to sue under Title VI in their own right because they are not the intended beneficiaries

of a federally funded education program. See, e.g., Tinney v. City of Detroit, 188 F.3d 509 (Table), No. 98-

1510, 1999 WL 685921, at *7 (6th Cir. Aug. 26, 1999); Jackson v. Katy Indep. Sch. Dist., 951 F. Supp.

1293, 1298 (S.D. Tex. 1996); Wheatley v. Boardman Loc. Schs., No. 4:21-cv-1831, 2022 WL 2291703, at

*6 (N.D. Ohio June 24, 2022). Even assuming, arguendo, that the parents have standing to sue under Title

VI on behalf of their minor children, as discussed above, Plaintiffs cannot satisfy their burden at this stage

to demonstrate a triable issue on this claim. Thus, the Court uses “Plaintiffs” in the Title VI section to

encapsulate any possible argument that J.S., J.E., or their parents may raise.

• An allegation from an African American student, a non-party, that Kaltenbach did

not punish a student who made a harassing statement to her (Doc. 92 at PageID

2147–48; Doc. No. 102 at PageID 2625–27);

• Statistical evidence purportedly showing that Northmont High School suspends

black students for marijuana more often than white students (See Doc. No. 101-1);

and

• An allegation that the School District acted in a discriminatory manner because

someone placed an inappropriate display of a brown mask on a pole in the high

school’s parking lot, and Northmont High School officials did not remove it (Doc.

No. 102 at PageID 2645–46).

The Court considers these in turn, with reference to each Defendant.

1. Title VI Claims Against Kaltenbach

“In a title VI case, the proper defendant ‘is the entity rather than an individual.’” Brooks

v. Skinner, 139 F. Supp. 3d 869, 881 (S.D. Ohio 2015); see also, e.g., Buchanan, 99 F.3d at 1356.

Because “it is beyond question” that Plaintiffs cannot sue Kaltenbach under Title VI, he is entitled

to judgment as a matter of law on that claim. Shotz v. City of Plantation, 344 F.3d 1161, 1171

(11th Cir. 2003); see also, e.g., Davis v. Flexman, 109 F. Supp. 2d 776, 793–94 (S.D. Ohio 1999).11

2. Title VI Claims Against the School District

Title VI “prohibits only intentional discrimination.” Alexander v. Sandoval, 532 U.S. 275,

280 (2001). Evidence of intentional discrimination under Title VI is either direct or indirect. See

Paasewe v. Ohio Arts Council, 74 F. App’x 505, 506–07 (6th Cir. 2003). Direct evidence is rare,

see, e.g., Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998), so the Sixth Circuit—and

this Court—permit a plaintiff to use indirect evidence to prove discriminatory intent. See, e.g.,

Johnson v. City of Clarksville, 186 F. App’x 592, 595 (6th Cir. 2006); Paasewe, 74 F. App’x at

506–07; Saqr v. Univ. of Cincinnati, No. 1:18-cv-542, 2021 WL 6064354, at *4 (S.D. Ohio Dec.

11 This also applies to the extent Plaintiffs assert Title VI claims through respondeat superior. See Jones v.

City of Detroit, 20 F.4th 1117, 1121 (6th Cir. 2021).

22, 2021). This employs the McDonell-Douglas burden shifting framework. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Johnson, 186 F. App’x at 595; Paasewe, 74

F. App’x at 507. Plaintiffs first must show: (1) they belonged to a protected class; (2) they suffered

adverse action from defendants in pursuing their education; (3) they were qualified to continue

pursuing their education; and (4) they were treated differently from similarly situated students

outside the protected class. See Bell v. Ohio State Univ., 351 F.3d 240, 253 (6th Cir. 2003) (citing

Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)). Once a plaintiff meets that threshold,

the burden of production shifts to the defendant to show a legitimate, non-discriminatory reason

for the adverse action. McDonnell Douglas, 411 U.S. at 802. If the defendant can, then the

plaintiff must show that this reason is pretextual. See Clay v. United Parcel Serv., Inc., 501 F.3d

695, 703 (6th Cir. 2007). “[A] plaintiff can show pretext in three interrelated ways: (1) that the

proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the

employer’s action, or (3) that they were insufficient to motivate the employer’s action.” Id. (citing

Hedrick v. W. Res. Care Sys., 355 F.3d 444, 460 (6th Cir. 2004)).

Plaintiffs lack direct evidence of intentional discrimination, so—although their arguments

are unclear—they seemingly opt for the McDonnell-Douglas burden-shifting analysis. See Doc.

No. 102 at PageID 2643–45. However, Plaintiffs cannot identify any relevant comparators. One

that they offer, “G.M.,” was in Northmont Middle School when suspended for having a marijuana

vape pen. Doc. No. 98 at PageID 2219–20. He chose an alternative program available to the

students at Northmont Middle School and received a three-day suspension. Id. at PageID 2219–

20; Doc. No. 99-1 at PageID 2519. A plaintiff “need not demonstrate an exact correlation,” but

his or her “comparators ‘must be similar in all of the relevant aspects.’” Foster, 573 F. App’x at

396 (emphasis in original) (quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,

352 (6th Cir. 1998)). Since G.M. was a middle schooler when suspended, subject to different

standards than high schoolers, that alone means that he is not an adequate comparator. See, e.g.,

Rowles v. Curators of Univ. of Mo., 983 F.3d 345, 355–56 (8th Cir. 2020) (summary judgment

was appropriate on graduate student’s discrimination claim where the record did not show that the

comparators were also graduate students). Even assuming, arguendo, that G.M. is an adequate

comparator, Defendants note that G.M. only received a lesser punishment because he opted for the

alternative program, and the School District has a legitimate justification to offer this option to

middle schoolers based on the age difference between middle school and high school students.

See Doc. No. 98 at PageID 2220; cf. Palmer v. Potter, 97 F. App’x 522, 525 (6th Cir. 2004) (noting

that employer could treat “veteran” employees harsher “than their junior colleagues”). Plaintiffs

do not respond to this reason, further entitling Defendants to summary judgment. See Paasewe,

74 F. App’x at 508; see also, e.g., Alexander, 576 F.3d 558–65.

Nor is the other student, whom Plaintiffs contend smoked marijuana on school grounds

without receiving discipline, a relevant comparator. Plaintiffs offer no evidence that Northmont

High School suspended him and gave him a lesser punishment, or that Defendants were aware that

this student smoked, possessed, or smelled like marijuana and chose to allot him different

treatment, so he is not “similar in all of the relevant aspects.” Ercegovich, 154 F.3d at 352

(emphasis in original); cf. Rallins v. Ohio State Univ., 191 F. Supp. 2d 920, 929–30 (S.D. Ohio

2002) (granting summary judgment where female plaintiff offered no evidence that male coaches

had comparable employment situations).

Plaintiffs’ remaining instances—involving a non-party, statistics, and a display—also do

not withstand scrutiny.12 First, actions “by decision makers unrelated to the decisional process

12 During his deposition, J.S. testified about an incident where a white student who instigated an altercation

with J.S. was not punished, despite J.S. reporting it to Kaltenbach. Doc. No. 61 at PageID 1482. Plaintiffs’

itself [cannot] suffice to satisfy the plaintiff’s burden of demonstrating animus[,]” so Kaltenbach’s

actions with the non-party that occurred outside of, and independent from, J.S.’s and J.E.’s

suspensions remain irrelevant. Foster, 573 F. App’x at 393 (quoting Bush v. Dictaphone Corp.,

161 F.3d 363, 369 (6th Cir. 1998)). Second, Title VI “doesn’t prohibit disparate-impact

discrimination.” Doe v. BlueCross BlueShield of Tenn., 926 F.3d 235, 240 (6th Cir. 2019) (citing

Alexander, 532 U.S. at 240). That forecloses Plaintiff’s reliance on suspension statistics purporting

to show a disparate impact on African American students. See Alexander, 532 U.S. at 240; Wilson

v. Collins, 517 F.3d 421, 431–32 (6th Cir. 2008); Thompson v. Ohio State Univ., 639 F. App’x

333, 341–42 (6th Cir. 2016). Finally, a plaintiff may not raise new theories “in response to

summary judgment” that are not implicated in the complaint. Bridgeport Music, Inc. v. WM Music

Corp., 508 F.3d 394, 400 (6th Cir. 2007) (citations omitted); see also Desparois v. Perrysburg

Exempted Vill. Sch. Dist., 455 F. App’x 659, 660 (6th Cir. 2012). This prevents Plaintiffs from

raising the parking lot display, or the student who reported harassment to Kaltenbach, as instances

of intentional discrimination—theories that are meritless anyway because Plaintiffs cannot

establish that these show “intentional discrimination by school officials[,]” M.J. v. Akron City Sch.

Dist. Bd. of Educ., 1 F.4th 436, 454 (6th Cir. 2021) (emphasis in original), or relate “to the

decisional process” at issue in the present case. Foster, 573 F. App’x at 393 (quoting Bush, 161

F.3d at 369). Therefore, on every theory, their Title VI claims fail as a matter of law.13

complaint further mentioned some allegedly discriminatory incidents occurring while J.S. was in middle

school. See Doc. No. 23 at PageID 613. However, Plaintiffs do not revisit these allegations in their

opposition to summary judgment. See Doc. No. 102. “Issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived.” El-Moussa v. Holder,

569 F.3d 250, 257 (6th Cir. 2009) (quoting McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997)).

Moreover, Plaintiffs “may not rely merely on allegations or denials in [their] own pleading” to resist

summary judgment. Alexander, 576 F.3d at 558. Thus, for these additional reasons, summary judgment

for Defendants is warranted here to the extent Plaintiffs rely on these allegations.

13 Plaintiffs ambiguously reference the Title VI deliberate indifference standard in their opposition to

summary judgment. Id. at PageID 2642–43. They refer to alleged misconduct from the City of Clayton

F. Equal Protection Clause Claims

“The Equal Protection Clause prohibits discrimination . . . which either burdens a

fundamental right, targets a suspect class, or intentionally treats one differently than others

similarly situated without any rational basis for the difference.” Rondigo, LLC v. Township of

Richmond, 641 F.3d 673, 681–82 (6th Cir. 2011) (citation omitted). Like Title VI, it “forbids only

intentional discrimination[,]” Horner v. Ky. High Sch. Athletics Ass’n, 43 F.3d 265, 267 (6th Cir.

1994), and uses the McDonnell-Douglas burden-shifting framework, see Lautermilk v. Findlay

City Schs., 314 F.3d 271, 275 (6th Cir. 2003).

J.S. and J.E., in conjunction with their Title VI claims, bring claims of racial discrimination

under the Equal Protection Clause. They cite incidents involving the non-party, statistics, and the

parking lot display, as well as their searches and suspensions, as evidence of the School District’s

allegedly unconstitutional, and racially discriminatory, treatment. See Doc. No. 102 at PageID

2633, 2643–47. For the reasons stated above, see supra Section III(E), these claims fail as a matter

of law because J.S. and J.E. cannot identify comparators and lack evidence of intentional

discrimination. Notably, they emphasize an alleged disparate impact in suspension length for

African American students compared to white students. Doc. No. 102 at PageID 2643. But

conduct with a “disproportionately adverse effect upon a racial minority” is unconstitutional “only

if that impact can be traced to a discriminatory purpose.” Pers. Adm’r of Mass. v. Feeney, 442

U.S. 256, 272 (1979); see also Ricci v. DeStefano, 557 U.S. 557, 627 (2009) (Ginsburg, J.,

dissenting) (“The Equal Protection Clause . . . prohibits only intentional discrimination; it does not

and its police officers—individuals and entities, as Plaintiffs acknowledge, dismissed from this case. Id. at

PageID 2624–25. This “perfunctory” argument is so unclear that the Court cannot speculate what alleged

harassment the School District was deliberately indifferent to. El-Moussa, 569 F.3d at 257. Regardless,

nothing in the record indicates that J.S. and J.E. were treated harsher than other students, or that the School

District turned a blind eye to mistreatment at its high school. See, e.g., Thompson, 639 F. App’x at 342–

44; Foster, 573 F. App’x at 388–89.

have a disparate-impact component” (citations omitted)). Assuming, arguendo, that a disparate

impact can be shown here, no such discriminatory purpose has been shown—on summary

judgment—to exist here. Thus, the Court shall grant summary judgment to Defendants.

G. Supplemental Jurisdiction Over Plaintiffs’ State Law Claim

A district court “may decline to exercise supplemental jurisdiction” over claims if it “has

dismissed all claims over which it has original jurisdiction[.]” 28 U.S.C. § 1367(c)(3). When “the

federal claims are dismissed before trial, the state claims generally should be dismissed as well.”

Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir. 2009) (quoting Wojnicz v. Davis, 80 F. App’x 382,

384–85 (6th Cir. 2003)). “In determining whether to retain jurisdiction over state-law claims, a

district court should consider and weigh several factors, including the ‘values of judicial economy,

convenience, fairness, and comity.’” Gamel v. City of Cincinnati, 625 F.3d 949, 951 (6th Cir.

2010) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)) (citing Landefeld v.

Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993)).

Only the negligent supervision claim remains. See Doc. No. 23 at PageID 628–30. On

balance, the § 1367 factors support declining supplemental jurisdiction over this claim. All the

federal claims here have been dismissed before trial. See Brooks, 577 F.3d at 709. In the interest

of fairness, “[a] state court should have the opportunity to consider the merits of Plaintiff[s’] state

law claim.” Aquilina v. Wrigglesworth, 759 F. App’x 340, 348 (6th Cir. 2018) (citation omitted).

Accordingly, Plaintiffs’ remaining state law negligent supervision claim shall be dismissed

without prejudice.

IV.

For the reasons stated, the Court (1) GRANTS Defendants’ motion for summary judgment

(Doc. No. 99) on all federal claims; (2) DISMISSES WITHOUT PREJUDICE Plaintiffs’

remaining state law claim for lack of supplemental jurisdiction; and (3) TERMINATES this case

on the docket.

IT IS SO ORDERED.

Date: February 8, 2023 s/Michael J. Newman

Hon. Michael J. Newman

United States District Judge