Deemar v. Board of Education of the City of Evanston/Skokie

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

STACY DEEMAR, )

Plaintiff,

V. No. 21-cv-3466

BOARD OF EDUCATION OF THE Judge John J. Tharp, Jr.

CITY OF EVANSTON/SKOKIE, et al., )

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Stacy Deemar is a drama teacher at Nichols Middle School in Evanston, Illinois.

Nichols is part of Evanston-Skokie School District 65, which is governed by the elected, seven-

member Board of Education of the City of Evanston/Skokie (“District 65” or the “District”).

Deemar has brought the present lawsuit against District 65 and three of its administrators, Devon

Horton in his official capacity as the District’s superintendent, LaTarsha Green in her official

capacity as District’s deputy superintendent, and Stacy Beardsley in her official capacity as

District’s assistant superintendent of curriculum and instruction. ' Deemar, who identifies as white,

contends that District 65 has repeatedly discriminated against her through its implementation of

several racial-equity-focused policies at her workplace by causing her to suffer from stigmatic

harms in addition to a racially hostile educational environment. The District has moved to dismiss

Deemar’s complaint on jurisdictional grounds as well as for failure to state a claim upon which

' For the sake of simplicity, the Court will use “District 65” or the “District” when referring

to Evanston-Skokie School District 65, defendant Board of Education of the City of

Evanston/Skokie, or all the defendants collectively.

relief can be granted. For the reasons that follow, the District’s motion is granted, and Deemar’s

complaint is dismissed without prejudice.

BACKGROUND

Ms. Deemar claims that the District repeatedly discriminated against her on the basis of

her race and subjected her to a racially hostile work environment through its implementation of

certain “racial equity” policies. Her complaint identifies several examples of “race-based

programming” to which, she asserts, the District subjected students, teachers, and other staff to

promote its ideal of racial equity. These programs included, for example, mandatory antiracist

training for teachers, racial affinity groups for students and teachers, a “Black Lives Matter at

School Week of Action,” and “antiracist,”’ “racial equity” focused student lesson plans about

“whiteness,” and more, as described below. Rather than promote equality and reconciliation

among the races, Deemar contends, these programs promoted and reinforced racial classifications,

discriminated against her as a white person, and produced a racially hostile educational

environment.

More concretely, Deemar’s complaint asserts the following categories of race-based

actions by the District:

e Racial-Equity-Focused Statements, Policies, and Initiatives. According to Deemar,

District 65’s public statements and policies reveal a preference for “racial equity” rather

than “racial equality.”* As some examples, she alleges:

o Compl. § 28: In 2015, District 65 released a five-year Strategic Plan developed

by its Research, Accountability, and Data Department. As part of its Plan,

* According to Deemar, the District explained the distinction as:

Equity is about fairness, justice and individuals getting what they need and deserve

in order to reach their full potential as opposed to equality, which is about sameness and treating

everyone in exactly an identical manner regardless of their differences or unique situations.

Compl. ¥ 34.

District 65 publicly expressed its desire that by the year 2020, “.. . our schools

and classrooms [will] be spaces marked by . . . equity.”

o Compl. ¥ 32: In 2017 and 2018, District 65 began its Achievement Reports

with a “Racial and Educational Equity Statement” that proclaimed the

District’s “commitment to equity” and vowed to identify and address barriers

such as “institutional racism,” which it claimed “create[s] advantages for

whites and oppression and disadvantage for people from groups classified as

people of color.”

e Race-Conscious Messaging in Employee Training and Professional Learning.

Deemar offers several examples of allegedly problematic assertions that the District

“asserts” through various training programs for District 65 teachers. For example:

o Compl. | 43-44: Through [the] Courageous Conversation [training program],

District 65 asserts, “White people tend to dominate conversation by setting the

tone for how everyone must talk and which words should be used.” It uses the

terms “white talk” and “color commentary” to describe how individuals of

different races interact. It describes “white talk” as “loud, authoritative...

[and] controlling,” and “color commentary” as “silent respect . . . [and]

disconnect.” Through Courageous Conversation training, District 65 accuses

“White educators” of forcing non-white students and colleagues to “conform

to the normalized conditions of White culture.”

e Racial Affinity Groups for Staff. Deemar also alleges that “District 65 mandated that

all staff undergo Beyond Diversity training by 2019, using Courageous Conversation

materials that employ race-based affinity groups.” Compl. § 49. “For example, in the

exercise called Engaging Multiple Racial Points of View, Beyond Diversity facilitators

segregate educators into racial affinity groups to read and discuss a poem.” Compl. §

50.

e Racial Affinity Groups for Students. Deemar also alleges that District 65 offered

affinity groups for students based on their race and gender. Compl. 4] 102-107.

e Privilege Walks for Staff. During some trainings, District 65 required teachers to rate

the applicability of a number of scenarios to their lives on a scale of 0-5, e.g., “Because

of my race or color, if I should need to move, I can be pretty sure of renting or

purchasing housing in an area which I can afford and in which I would want to live.”

Compl. 4 69. Participants are then told to form a line, with the highest scores on the left

and the lowest scores on the right. The Courageous Conversation facilitator then reads

a series of prompts. For each prompt, individuals to whom it applies are instructed to

take a step forward. Near the end of the exercise, the facilitator asks all white people

standing in line to step forward. The facilitator concludes, “What you see is White

privilege and the color line.” Compl. §§ 70-71.

e Privilege Walks for Students. Deemar alleges that the District also conducted

privilege walk activities, to the effect described above, for students. Compl. 4] 108-

111.

e Professional Learning for Administrators: White Fragility. Deemar alleges,

“District 65 administrators read the book White Fragility by Robin DiAngelo. For the

book discussions, District 65 separated administrators into different affinity groups

based on their race. Specifically, District 65 excluded white administrators from the

rest of their colleagues by placing them in a separate discussion group.” Compl. § 76.

She then excerpts several quotes from the book, copies of which she also alleges were

offered to teachers, including, for example, “[w]hite identity is inherently racist; white

people do not exist outside the system of white supremacy,” Compl. {| 80, and, “white

people raised in Western society are conditioned into a white supremacist worldview

because it is the bedrock of our society and its institutions,” Compl. § 81.

e Student Curriculum/Black Lives Matter Week. Deemar also alleges that during the

2019-20 and 2020-21 school years, the District held “Black Lives Matter at School

Weeks of Action,” during which teachers and students worked through lesson plans

about racism, which Deemar alleges were themselves racially discriminatory.

According to Deemar, she was instructed to teach a lesson about intersectionality

during one of these weeks. Compl. § 123. During one of these weeks, students were

instructed to read aloud a book that teaches things such as: “Racism is a white person’s

problem and we are all caught up in it,” Compl. ¥ 128, “In the United States of America,

white people have committed outrageous crimes against Black people for four hundred

years,” Compl. § 129, and “Whiteness is a bad deal. It always was,” Compl. 4 133.

Deemar also alleges that, following this reading, teachers ask students, ““What does it

mean to be white but not be a part of ‘whiteness’?”. Compl. ¥ 135.

The complaint also includes a section entitled, “Plaintiff's Experience at District 65.”

Compl. □ 161-175. It alleges that she was “aware of and subjected to” the racially segregated

affinity groups, training, curriculum about whiteness, and racial equity policies. Compl. § 163. She

alleges that she spoke out about the practices at a drama department meeting, but her colleagues

“interrupted her, rolled their eyes, and told [her] she did not know what she was talking about.”

Compl. § 166. Deemar concluded that her colleagues would further marginalize her if she pressed

her concerns, so she didn’t speak out against them again.

In 2019, Deemar filed a complaint with the Department of Education Office for Civil

Rights (“OCR”). According to Deemar, OCR notified District 65 through a letter of finding that

the District was violating Title VI of the Civil Rights Act of 1964. OCR gave the District 90 days

to reach a resolution with the Office. Following a change in presidential administrations, however,

Deemar states that OCR suspended its letter of finding.

Now, turning to the federal courts, Deemar asserts that she is entitled to relief under Title

VI and the Equal Protection Clause of the U.S. Constitution. She asserts her discrimination and

differential treatment claim under both Title VI and the Equal Protection Clause (Counts I and ID)

and her racially hostile educational environment claim under Title VI only (Count UI). Deemar

seeks relief in the form of a declaratory judgment, a permanent injunction, and nominal damages

of $1.00. According to Deemar, District 65 has not ceased the sort of programming about which

she complains. There is no indication that Deemar has stopped working for the District or

otherwise had any changes to her employment circumstances.

ANALYSIS

District 65 filed a motion to dismiss Deemar’s complaint under Fed. R. Civ. P. 12(b)(1) for

lack of subject matter jurisdiction or, in the alternative, to dismiss under Rule 12(b)(6) for failure

to state a claim. With respect to the Rule 12(b)(1) motion, the District argues that Deemar has

failed to establish that she has standing to bring her claims, which in turn means that this Court

lacks subject matter jurisdiction over her claims. As for its Rule 12(b)(6) challenge, the District

argues that Deemar has not stated a plausible claim because (1) she is not in the zone of interests

protected by Title VI of the Civil Rights Act, and thus lacks statutory standing to seek relief under

the statute, and (ii) her complaint fails to adequately allege that she faced an adverse action or was

subjected to an actionably hostile environment, as needed to state a claim under Title VI or the

Equal Protection Clause. The District also filed a declaration by Stacy Beardsley in support of its

motion to dismiss, and Deemar has moved to strike it.?

For the reasons that follow, District 65’s motion to dismiss for lack of subject matter

jurisdiction is granted as to Deemar’s discrimination claim and denied as to Deemar’s hostile

educational environment claim, and District 65’s motion to dismiss for failure to state a claim is

granted as to Deemar’s hostile educational environment claim.

1. Subject Matter Jurisdiction

District 65 asserts that Deemar has not invoked this Court’s subject matter jurisdiction

because her complaint fails to establish her standing. “Under Article III of the Constitution, the

judicial power of the United States extends only to cases and controversies.” Wisconsin Right to

Life, Inc. v. Schober, 366 F.3d 485, 488 (7th Cir. 2004). “The core component of standing is an

essential and unchanging part of the case-or-controversy requirement of Article II.” Lujan v. Defs.

of Wildlife, 504 U.S. 555, 560 (1992). “As an aspect of justiciability, the standing question is

whether the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ as to

warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial

powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498-99 (1975) (quoting Baker v. Carr, 369

U.S. 186, 204 (1962)). Thus, standing is a key justiciability doctrine that “assure[s] that cases will

be litigated by those having an actual stake in the outcome and that decisions will be made in an

arena of real and substantial problems to be redressed by specific solutions.” Jorman v. Veterans

Admin., 830 F.2d 1420, 1424 (7th Cir. 1987).

> This case was originally assigned to Judge Dow. In 2022, Judge Dow ordered

supplemental briefing on various issues, ECF No. 41. The case was reassigned to this Court before

Judge Dow entered a ruling.

That “core component of standing,” i.e., the “irreducible constitutional minimum,”

comprises three elements: First, the plaintiff must have suffered an “injury in fact—an invasion of

a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent,

not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (1992) (cleaned up). “Second, there must

be a causal connection between the injury and the” complained-of conduct, so that the injury is

fairly traceable to the defendant’s actions. /d. Third, it must be likely—not merely speculative—

that a ruling in favor of the Plaintiffs will redress the injury. /d. at 561.

“As the party invoking federal jurisdiction, a plaintiff bears the burden of establishing the

elements of Article III standing.” Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015). “When

reviewing a dismissal for lack of subject matter jurisdiction . . . a district court must accept as true

all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff.”

Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). And the Court “may properly

look beyond the jurisdictional allegations of the complaint and view whatever evidence has been

submitted on the issue to determine whether in fact subject matter jurisdiction exists.” /d. (quoting

Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993) (per curiam)).

The District argues that Deemar lacks standing to challenge the District’s policies and

practices because she has not shown that she has personally suffered an injury-in-fact that is

traceable to the District’s conduct. Specifically, District 65 posits that Deemar’s alleged stigmatic

injuries based on the District’s race-conscious programming are too abstract to serve as the basis

for a claim before a federal court, and she has not shown that she has been treated differently from

others. Next, it contends that Deemar’s complaint should not be allowed to proceed as a vehicle

for grievances about the curriculum’s impact on students.

The Court evaluates whether Deemar has satisfied her burden of establishing standing to

pursue her discrimination and hostile educational environment claims separately. “[A] plaintiff

must demonstrate standing for each claim he seeks to press.” Davis v. FEC, 554 U.S. 724, 734

(2008). “Although standing in no way depends on the merits of the plaintiff's contention that

particular conduct is illegal, e.g., Flast v. Cohen, 392 U.S. 83, 99 (1968), it often turns on the

nature and source of the claim asserted.” Warth, 422 U.S. at 500.

Moreover, Deemar’s complaint contains allegations about several different types of

conduct. “The fact that a plaintiff has suffered an injury that is traceable to one kind of conduct

does not grant that plaintiff standing to challenge other, even related, conduct . . .” Johnson, 783

F.3d at 662. Thus, the Court’s claim-by-claim analysis will take care to identify which particular

conduct, if any, gives rise to Deemar’s claim of injury.

A. Standing to Pursue Discrimination Claim under the Equal Protection Clause

and Title VI

Deemar invokes both the Equal Protection Clause of the U.S. Constitution and Title VI of

the Civil Rights Act as the vehicles for her discrimination claim. The parties agree, however, that

they are subject to the same standing analysis. But they offer slightly different characterizations of

the legal framework for conducting that analysis. Deemar proposes that:

To establish standing under an Equal Protection Clause challenge, a

plaintiff must “show that the challenged classification creates a

‘barrier that makes it more difficult for members of one group to

obtain a benefit, or causes ‘non-economic injuries’ such as

‘stigmatizing members of the disfavored group.’”

Pl.’s Resp. at 5-6 (quoting Johnson v. U.S. Off. of Pers. Mgmt, 783 F.3d 655, 665-66 (7th Cir.

2015)). She concedes that she “does not argue here that District 65 has erected a barrier that makes

it more difficult for her to seek a benefit than members of another racial group.” /d. at 6. Rather,

she contends that her complaint satisfies the standing test because it establishes that (1) the District

employs racial classifications throughout its programming and (2) these classifications have

caused her to suffer stigmatic harm. /d.

Deemar’s proposed equal protection standing argument misses its mark. To be sure, the

Supreme Court has ruled time and again that stigmatizing racial classifications can be harmful:

“There can be no doubt that this sort of noneconomic injury is one of the most serious

consequences of discriminatory government action and is sufficient in some circumstances to

support standing.” Allen v. Wright, 468 U.S. 737, 755 (1984). But the Supreme Court’s “cases

make clear, however, that such injury accords a basis for standing only to those persons who are

personally denied equal treatment by the challenged discriminatory conduct.” /d. (cleaned up); see

also Freedom from Religion Found., Inc. v. Lew, 773 F.3d 815, 822 (7th Cir. 2014) (“[T]he mere

fact that discrimination is occurring is not enough to establish standing, absent being “personally

denied equal treatment.” (quoting Allen, 468 U.S. at 755)). “If the abstract stigmatic injury were

cognizable, standing would extend nationwide to all members of the particular racial groups

against which the Government was alleged to be discriminating ... .” Allen, 468 U.S. at 755-56.

“Recognition of standing in such circumstances would transform the federal courts into ‘no more

than a vehicle for the vindication of the value interests of concerned bystanders.’” Jd. at 756

(quoting U.S. v. Students Challenging Reg. Agency Procedures (SCRAP), 412 U.S. 669, 687

(1973)). Thus, racial stigmatic harm can show why differential treatment is injurious even in the

absence of some tangible harm (or denial of a benefit) stemming from that treatment. But the fact

that a plaintiff suffered a stigmatic harm from a state action is not in itself sufficient to show

differential treatment.

To illustrate, if the District declared that white teachers were not allowed to earn extra pay

by teaching summer school classes, then a white teacher would be able to show that there is a

barrier that makes it more difficult for white teachers to seek a certain benefit. In that case, a white

teacher would establish injury/standing based on unequal treatment without reference to racial

stigma. But imagine if the District forced white teachers to teach in classrooms on the southwest

side of the school and allowed non-white teachers to teach anywhere, and assume that there is no

tangible benefit to teaching in any particular area of the school. A white teacher could still

demonstrate that they suffered a cognizable injury by alleging that there is a harmful stigma

associated with being relegated to one side of the building while teachers of other races can teach

anywhere. See, e.g., Freeman v. Pitts, 503 U.S. 467, 485-86 (1992) (noting that stigmatic injury is

the principal wrong of de jure segregation). That is, where the state treats people of different races

differently, but it is not obvious from a tangible or economic perspective why that instance of

different treatment is actually unequal treatment—the core evil targeted by the Equal Protection

Clause—the notion of stigmatic harm steps in to demonstrate the injurious nature of the state’s

conduct.

To have suffered a cognizable injury under the Equal Protection Clause, then, Deemar must

allege that the District treated her differently on the basis of her race and thus caused her stigmatic

injuries, not merely that the District’s messages concerning race and racism upset, offended, or

stigmatized her.

1. Injuries Stemming from Deemar’s Exposure to Allegedly

Discriminatory Lesson Plans and Staff Training

Deemar’s complaint outlines an array of lesson plans concerning race that were directed at

students, teachers, and administrators. It is, at times, unclear from the complaint to which particular

lesson plans Deemar was actually exposed, or required to teach, at the time. Putting that problem

aside, the Court considers whether Deemar can establish that she suffered a cognizable injury as a

result of being treated differently because white teachers like her were allegedly exposed to

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training, lesson plans, and other programs that, in her view, stigmatized white people as oppressors,

while non-white teachers in District 65 were not exposed to programs that made their respective

races out to be oppressors?

The answer is no. The school’s messaging itself, which Deemar alleges differentiates

among races, cannot itself be considered unequal treatment, nor can Deemar’s feelings of stigmatic

injury stemming from her exposure to those statements furnish her with a basis for Article III

standing. “. . . A/len and its progeny make clear that those same types of injuries are not a basis for

standing under the Equal Protection Clause—that is, exposure to a discriminatory message,

without a corresponding denial of equal treatment, is insufficient to plead injury in an equal

protection case.” Moore v. Bryant, 853 F.3d 245, 250 (5th Cir. 2017); see also Carroll v. Nakatani,

342 F.3d 934, 946 (9th Cir. 2003) (“Being subjected to a racial classification differs materially

from having personally been denied equal treatment. ... . [Plaintiff] does not cite, and we do not

find, any authority supporting the proposition that racial classification alone amounts to a showing

of individualized harm.”); Johnson, 783 at 660 (“Neither psychological harm ‘produced by

observation of conduct with which one disagrees’ nor offense at the behavior of government and

a desire to have public officials comply with one’s view of the law constitutes a cognizable injury.”

(quoting Valley Forge Christian Coll. v. Am. United for Separation of Church & State, Inc., 454

U.S. 464, 485 (1982))).

In Moore v. Bryant, the Fifth Circuit confronted a complaint where a Black prosecutor

sought to challenge the constitutionality of Mississipp1’s state flag, which depicted the Confederate

battle flag in its corner.* The plaintiff characterized his injury for Article III standing purposes as

follows:

* Mississippi has since changed its flag. https://www.mdah.ms.gov/taxonomy/term/131.

11

[H]e is unavoidably exposed to the state flag and that the flag’s

message is “painful, threatening, and offensive” to him, makes him

“feel like a second-class citizen,” and causes him both physical and

emotional injuries.” At its core, Plaintiff's injury theory is that the

Mississippi state flag stigmatizes him.

Moore, 853 F.3d at 249. Thus, there was: A state message (the flag) that the plaintiff alleged

expressed a discriminatory message (essentially: “We revere our state’s history of fighting to

preserve the institution of slavery of African Americans.”) to which the state directly subjected

him on a constant basis (by virtue of his employment in courthouses where the state flag is flown).

The Fifth Circuit held that this injury was not cognizable in an equal protection case, and it

explained the nature of the Equal Protection Clause in part by contrasting it with the sorts of

injuries toward which the Establishment Clause is directed. “In an Establishment Clause case, a

plaintiff adequately alleges standing by alleging direct and unwelcome exposure to a religious

display.” /d. It continued:

The reason that Equal Protection and Establishment Clause cases

call for different injury-in-fact analyses is that the injuries protected

against under the Clauses are different. The Establishment Clause

prohibits the Government from endorsing a religion, and thus

directly regulates Government speech if that speech endorses

religion. .. . The same is not true under the Equal Protection Clause:

the gravamen of an equal protection claim is differential

governmental treatment, not differential governmental messaging.

Id. at 250.

The Court finds Moore’s reasoning regarding the application of A//en persuasive and

consistent with the law of the Seventh Circuit. See Johnson, 783 at 660-64. Applying it here, it is

apparent that Deemar’s allegations regarding her exposure to the District’s race-conscious

programming do not, either individually or cumulatively,’ give rise to a cognizable injury-in-fact

° The Fifth Circuit went on to explain why the presence of this message throughout his

place of work—courthouses, since he was a prosecutor—could not furnish the plaintiff with

standing even if he analogized it to a hostile workplace injury. /d. at 251-52 (“[S]tigmatic injury

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under the equal protection clause any more than did the Black prosecutor’s allegations regarding

his exposure to the racist Mississippi flag in Moore. Just as the Black prosecutor was subjected to

the same treatment as every other prosecutor vis-a-vis the state flag (i.e, exposed to it in

courtrooms), Deemar was treated the same way as every other District teacher with respect to the

majority of the conduct about which she complains. The Court finds that Deemar’s alleged

required participation in certain those messages does not move the ball forward for her; the

outcome of Moore did not depend on, for example, whether Mississippi required its prosecutors

to wear Mississippi flag pins when representing the State.

Deemar attempts to distinguish Moore by arguing that she “has thoroughly alleged that the

District has ascribed moral characteristics to her and her colleagues on the basis of race that it then

incorporates into the routine in which Plaintiff must participate.” Pl.’s Resp. at 9, n.12. That

distinction is not persuasive because it again relies on an injury stemming from differential

messaging, which Allen established was not within the purview of equal protection, as opposed to

differential treatment. If Deemar’s argument were accepted, the distinction between messaging

and treatment—the types of conduct that the Establishment Clause and the Equal Protection Clause

respectively target—would collapse.

One can imagine several ways that racialized government messaging can turn into

differential treatment and thus give rise to a cognizable injury in an equal protection case. It can

be based on who must disseminate the messaging or listen to it, e.g., a rule that only white teachers

must listen to or teach certain messages. Here, Deemar does not allege that she was personally

forced to share or listen to a particular message because of her race. Another way that government

does not transform into injury in fact just because the source of the stigmatic injury is frequently

confronted or the stigmatic harm is strongly, sincerely, and severely felt.”).

13

messaging can turn into differential treatment is if the plaintiff alleges that the government

messaging instructed other individuals to treat the plaintiff differently or deprive them of some

benefit, and then those individuals followed those instructions. Of course, the normal rules of

traceability would apply. But, again, no such allegations are present here. Until abstract, allegedly

discriminatory messaging becomes discriminatory individual treatment, it can only be used as

extremely strong evidence of racialized intent when actual discrimination causes a cognizable

injury.

It also bears noting that Deemar’s lack of an injury-in-fact with respect to the lesson plans,

both curricular and extracurricular, reflects a broader problem with the justiciability of her

discrimination claim stemming from the student curriculum and staff racial sensitivity trainings.

Much of her complaint identifies sociological propositions about the nature, history, and

manifestation of racism as the “racial classifications” that have caused her to suffer stigmatic harm.

For example, she cites a lesson plan that allegedly states: “Because of the overt and subliminal

messages about Black people being bad, ugly, and inferior to White people, Black people feel

pressure to assimilate, or throw away their culture in order to become more like White people in

the hopes to be more accepted by society.” Compl. ¥ 11.k. Another example is her allegation that:

District 65 defines “racism” as “created for groups historically or

currently defined as white being advantaged, and groups historically

defined as non-white .. . as disadvantaged.” District 65 further

explains that racism is not mere “racial prejudice,” but rather

prejudice “and power.” Finally, District 65 describes “whiteness” as

a “key” mechanism “through which power operates.”

Compl. 4 14. And, as a final example, Deemar alleges that a book that District 65 administrators

read made propositions such as: “white people raised in Western society are conditioned into a

white supremacist worldview because it is the bedrock of our society and its institutions,” and

14

white people “infuse their racial prejudice into the laws, policies, practices, and norms of

society[.]” Compl. § 81.

But the Court is not the appropriate arbiter of the validity and propriety of these

controversial contentions. That is the role of the duly elected District Board. The assertions that

District 65 includes in its curriculum may be true. They may be false. They may be warranted or

unwarranted. They may enlighten or infuriate. But except for the most extreme circumstances it is

not the province of the federal courts to evaluate their legitimacy or balance their pedagogical

value against their offensiveness. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988)

(“[T]he education of the Nation’s youth is primarily the responsibility of parents, teachers, and

state and local school officials, and not of federal judges.”); Monteiro v. Tempe Union High Sch.

Dist., 158 F.3d 1022, 1032 (9th Cir. 1998) (“It is simply not the role of courts to serve as literary

censors or to make judgments as to whether reading particular books does students more harm than

good.”).

A Ninth Circuit case to which both parties cite, Montiero, explains:

[W]e conclude that the assignment of a literary work determined to

have intrinsic educational value by the duly authorized school

authorities cannot constitute the type of discriminatory conduct

prohibited by the Fourteenth Amendment and Title VI, regardless of

the fact that the work may be deemed to contain racist ideas or

language. We do not, of course, suggest that racist actions on the

part of teachers implementing a curriculum could not comprise

discriminatory conduct for the purposes of Title VI or the Fourteenth

Amendment. Nor do we preclude the prosecution of actions alleging

that schools have pursued policies that serve to promote racist

attitudes among their students, or have sought to indoctrinate their

young charges with racist concepts.

158 F.3d at 1032. Deemar latches on to the latter language: the Ninth Circuit’s disclaimer that it

would not preclude actions based on indoctrination and policies that serve to promote racist

15

attitudes. But again, that door is only open to plaintiffs who are able to allege that they were

meaningfully injured by such policies.

The Equal Protection Clause requires the states to treat each person as an individual and

not a mere by-product of the social categories to which he or she belongs. Students for Fair

Admissions, Inc. v. Pres. and Fellows of Harvard College, 600 U.S. 181, 220-21 (2023). And cases

stemming from governmental failures to abide by that requirement are appropriate for federal

judicial resolution; courts are well suited to identify and remedy injuries where people are treated

differently because of their immutable characteristics, 7.e., discriminated against. But Deemar has

not persuaded the Court that the Equal Protection Clause enables federal courts to exercise

jurisdiction over grievances about whether and how states can acknowledge the existence of social

categories—or stake out claims about the origins and nature of discrimination pertaining to those

social categories—without ever actually acting on those ideas by subjecting any individuals to

some sort of differential, harmful treatment.

2. Discrimination at Affinity Groups and Segregated Meetings

Next, Deemar alleges that “Defendants treated Plaintiff differently from her colleagues

because of her race when they intentionally segregated staff meetings by race, offered race-based

programming, promoted affinity groups, conducted privilege walks, and maintained policies

committed to ‘focusing on race as one of the first visible indicators of identity[.]’”” Compl. § 179.

The Court has already addressed the “race-based programming” and “policies committed to

focusing on race as one of the first visible indicators of identity” aspects of Deemar’s assertion,°

© Deemar also fails to allege a cognizable injury stemming from the “privilege walks” for

the same reasons as the race-based programming.

16

but the allegations concerning segregated staff meetings and affinity groups merit separate

consideration.

In some circumstances, a state entity’s use of racially segregated affinity groups or

trainings for staff can give rise to a cognizable injury for Article III standing purposes. Injuries

stemming from the separation of individuals based on race are certainly within the purview of the

Equal Protection Clause. See Students for Fair Admissions, Inc., 660 U.S. at 203 (“Separate cannot

be equal.”).

But, as always, a plaintiff in any discrimination case must allege that they were “personally

subject to the challenged discrimination.” Allen, 468 U.S. at 755. Deemar can show that she was

personally subject to the discriminatory meetings/groups by either actually having attended them

or, if she elected not to attend them, alleging that she was “able and ready” to attend the meetings

and would have but for their segregated nature. Carney v. Adams, 592 U.S. 53, 60 (2020). For

example, the plaintiff in Diemert v. City of Seattle “allege[d] that he tried to ‘sign up for a training

reserved only for people of color,’” that the City of Seattle had set up or promoted, “but he was

harassed and advised that he should not sign up.” No. 2:22-CV-1640, 2023 WL 5530009, at *5

(W.D. Wash. Aug. 28, 2023). The court in Diemert did not discuss any standing issues, but it did

find that the plaintiff had stated a plausible equal protection claim based on the City’s race-based

and voluntary affinity group practices. /d. at *5-6.

The question is, then, was Deemar “personally subject to” any racially segregated

meetings, training programs, or affinity groups? She never alleges that she attended any racially

segregated meetings or training, or that she otherwise would have sought the benefits associated

with attending the meetings and racial sensitivity training if not for their segregated nature. Nor

does she allege that they were mandatory, in the sense that her failure to attend caused her to suffer

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any sort of adverse consequences. Her allegations concerning how she was “personally subject”

to the meetings and training amount to no more than exposure or awareness; she was no more

personally subject to these incidents than, for instance, a student who receives a letter inviting

them to apply to a university that offered preferential admissions based on race but who otherwise

does not intend to apply. Cf Gratz v. Bollinger, 539 U.S. 244, 262 (2003) (holding that plaintiff

had standing to challenge university’s affirmative action admissions policy because he had applied

for admission and been rejected in the past, intended to apply in the near future if the policy were

stricken, and the university was taking applications for transfers on a rolling basis). And to the

extent that Deemar seeks prospective relief, she must also plausibly allege her intentions with

respect to future segregated meetings.

District 65 has submitted a declaration by assistant superintendent of curriculum and

instruction Stacy Beardsley wherein Ms. Beardsley attests that Deemar did not personally attend

any affinity group meetings or other meetings where staff members were segregated by race.

Beardsley Decl., ECF No. 21-1. Deemar’s complaint does not allege that she ever personally

participated in any such activities either. Deemar seeks to strike the Beardsley declaration on the

basis that many of the assertions constitute inadmissible hearsay. Mot. to Strike, ECF No. 30. It is

unnecessary to reach that issue or rule on the motion because Deemar does not allege that she did

SO.

3. Discrimination at Drama Department Meeting

Deemar’s complaint chronicles an episode where she spoke out during a drama department

meeting in February 2016. (Deemar does not specifically identify it in resisting the motion to

dismiss her discrimination claim for lack of standing, but the Court considers it regardless.)

According to Deemar, she “was concerned by statements in the book such as, ‘I’ve encountered

racism and discrimination from White adolescents and adults,’ and ‘teachers should examine if

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objectives, expectancies, etc., may be Eurocentric or incompatible with the learning styles and

everyday realities of children of color[.]’” Compl. J 165. “When Plaintiff expressed these concerns

[about the student curriculum at a Drama Department meeting], her colleagues interrupted her,

rolled their eyes, and told Plaintiff she did not know what she was talking about.” Compl. ¥ 166.

Deemar “concluded that if she voiced her concerns further, she would be marginalized and face

further humiliation from her colleagues. That was the one and only time Plaintiff spoke out to

District 65 against the District’s materials or policies.” Compl. 4 167. The complaint does not

identify any state action relating to this episode, nor does Deemar explain how her treatment is

traceable to the District’s actions or on the basis of her race, as opposed to her speech. Therefore,

these allegations do not suffice to establish Deemar’s standing to pursue her discrimination claim.

4. Discrimination Stemming from Student Affinity Groups

Deemar does not have standing to pursue a discrimination claim based on the existence of

student affinity groups. She was not personally affected by them and cannot assert the rights of

third parties through her complaint.

In short, Deemar fails to identify any discriminatory conduct that caused her to personally

suffer a concrete and particularized injury sufficient to invoke this Court’s subject matter

jurisdiction. Accordingly, her discrimination claim is dismissed without prejudice for lack of

subject matter jurisdiction.

B. Article II] Standing to Pursue Hostile Educational Environment Claim

Title VI provides: “No person in the United States 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. §

2000(d). The parties agree, courts have uniformly held, and the Department of Education has long

recognized, that Title VI provides for a cause of action against educational institutions (among

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other entities) receiving federal funds that inculcate or fail to adequately address racially hostile

educational environments. “To establish a hostile educational environment under Title VI, [a

plaintiff] must show that the alleged harassment was severe or pervasive enough to deprive him of

access to educational benefits.” Qualls v. Cunningham, 183 Fed. Appx. 564, 567 (7th Cir. 2006)

(unpublished). Courts have analogized hostile educational environment claims under Title VI to

hostile work environments under Title VII. See, e.g., Monteiro v. Tempe Union High Sch. Dist.,

158 F.3d 1022, 1033-34 (9th Cir. 1998) (collecting cases in the Title VI context suggesting that

“racist attacks need not be directed at the complainant in order to create a hostile educational

environment.”’).

Specifically with respect to Count III, her hostile educational environment claim pursuant

to Title VI,’ Deemar alleges:

Defendants have subjected Plaintiff to severe, pervasive, and

objectively offensive racial harassment through mandatory race-

based training, race-conscious student curriculum, segregated staff

meetings and affinity groups, privilege walks, and frequent and

repeated affirmation by Defendants about the District’s commitment

to making racial distinctions among students and staff.

The harassment has deprived and continues to deprive Plaintiff of

access to adequate professional development, it has altered the

conditions of her employment, and it has a systemic effect on

education within the District as a whole.

Compl. Ff 190-191.

In her briefing, she characterizes her injury as follows:

This harassment has deprived her of access to professional

development that advances Plaintiff's teaching skills and improves

unity among colleagues. More importantly, it has deprived Plaintiff

of a community where she can create, share, enjoy, and connect with

7 Deemar disavows that she is asserting a hostile werk environment but rather insists that

“her claim is a hostile educational environment claim.” Pl.’s Resp. to Mot. to Dismiss at 16, ECF

No. 29 (emphasis in original).

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her coworkers and students on an individual basis, in violation of

her civil rights.

Pl.’s Resp. to Mot. to Dismiss at 16, ECF No. 29 (emphasis in original).

It is possible for a plaintiff to simultaneously lack Article III standing to bring a traditional

discrimination claim under Title VI or the Equal Protection Clause and have standing to bring a

hostile environment claim under Title VI based on the same factual allegations about the

defendant’s conduct. As discussed above, the Equal Protection Clause’s prohibition against racial

discrimination does not transform stigmatic harms stemming from, for example, a public

institution’s offensive racialized messaging or racial classifications about which a plaintiff was

merely aware but to which they were never personally subjected, into cognizable injuries. But

Civil Rights Act provisions such as Title VI “evince[d] a congressional intent to strike at” a broader

“spectrum” of injuries, including one’s subjection to certain environments that are “permeated

with discriminatory intimidation, ridicule, and insult.” Harris v. Forklift Sys., Inc., 510 U.S. 17,

21 (1993) (discussing Title VII’s prohibition against requiring employees to work in

discriminatorily hostile or abusive environments on the basis of their race, sex, etc.). Thus,

Congress sought to carve a “middle path,” without “making actionable any conduct that is merely

offensive,” or going so far as to “requir[e] the conduct to cause a tangible psychological injury,”

id. “Congress has the power to define intangible harms as legal injuries for which a plaintiff can

seek relief... .” Casillas v. Madison Ave. Assocs., 926 F.3d 329, 333 (7th Cir. 2019); see also

Warth, 422 U.S. at 501 (“Congress may create a statutory right or entitlement the alleged

deprivation of which can confer standing to sue even where the plaintiff would have suffered no

judicially cognizable injury in the absence of statute.”’).

The Fifth Circuit in Moore acknowledged that subjection to a hostile environment is a

distinct injury from the set of injuries that are cognizable under the Equal Protection Clause.

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Moore, 853 F.3d at 251-52. “[A]Jnalogizing Plaintiff's equal protection claim to a hostile work

environment claim fails for the same reason that the Establishment Clause analogy fails: under

Title VU, 42 U.S.C. § 2000e et seg., exposure to a hostile work environment alone is the injury;

under the Equal Protection Clause it is not.” Jd. at 252.

Whereas Deemar lacked standing to pursue her discrimination claim because she was not

personally subject to racial staff affinity groups, not treated differently from others in terms of her

exposure to the school’s race-conscious lesson plans for students and teachers, and otherwise not

denied any tangible benefits or targeted for negative treatment on account of her race, each of those

things can contribute to an overall racially hostile environment that injures her in a cognizable

way. That is the sort of indirect injury that Congress has authorized the federal courts to adjudicate.

She argues that it has affected her personally and directly. She seeks monetary damages as a form

of remedy. Therefore, the Court has subject matter jurisdiction over Deemar’s Title VI hostile

educational environment claim.

I. Plausibility of Deemar’s Hostile Educational Environment Claim.

The District has also moved to dismiss Deemar’s hostile educational environment claim

for failure to state a claim upon which relief can be granted. It argues:

While Deemar generally alleges the District “receives federal

funding for educational and vocational purposes” (Compl. J 20,

185), she does not allege, and cannot allege consistent with the

requirements of Federal Rule 11, that the primary purpose of such

federal funding is to provide employment generally or provide

employment to Deemar specifically. In fact, Deemar identifies no

specific federal funding at all allegedly received by the District,

and... courts presume general federal funding received by school

districts is directed at supporting the educational needs of students,

not providing employment to teachers.

Defs.’ Memo. at 15. The District also contends that, “in arguing that she is asserting a claim based

on the ‘educational’ environment, Deemar ignores the fact that she is an employee of the District,

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not a student. Claims of hostile educational environment are reserved for students.” Defs.’ Reply

at 12.

Deemar, acknowledging that this is a case of first impression as to this issue, does not cite

any case suggesting that a teacher can state a claim for hostile educational environment under Title

VI. See Pl.’s Supp. Briefing at 8, ECF No. 44. Instead, in defending her claim, Deemar relies

heavily on the Seventh Circuit’s recent analysis in 7.S. by and through T.M.S. v. Heart of CarDon,

LLC, 43 F.4th 737 (7th Cir. 2022). In 7.S. v. Heart of Cardon, LLC, the child of an employee at

an assisted living facility sued the facility, alleging discrimination because the facility’s employee

health plan did not cover the child’s autism care. 43 F.4th 737 (7th Cir. 2022). The facility argued

that although it received federal funding for patient services under the Patient Protection and

Affordable Care Act (ACA), the child was not a facility patient within the statute’s zone of

interests. Jd. at 740. The Seventh Circuit rejected that argument, holding that the ACA’s

enforcement provision was not limited to the discrete portion of a covered entity that receives

federal funding but rather was broadly intended to prevent discrimination by healthcare facilities

receiving federal funding. /d. at 744.The Court also noted that Congress could have narrowed the

scope of the law by limiting the parties who could enforce the ACA antidiscrimination provision

(which incorporated Title VI’s provisions) to “patients” or “beneficiaries,” but it chose not to do

so. Id.

Given that the ACA was modeled after Title VI, and that their language is nearly identical,

Ms. Deemar contends that “any individual” may also bring a Title VI hostile educational

environment claim. But the plaintiffs reliance on Heart of Cardon is misplaced in the context of

a Title VI claim. Although the Seventh Circuit’s zone-of-interests analysis in Heart of Cardon may

suggest that a teacher can bring some types of claims under Title VI, it does not confer upon a

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teacher the right to bring any sort of cause of action under the statute in their capacity as a teacher,

particularly a so-called “hostile educational environment claim.” That is because—unlike in the

ACA—Congress expressly excluded from the class of potential plaintiffs under Title VI those

asserting claims of employment discrimination. Title VI may not be construed “to authorize action

by any department or agency with respect to any employment practice of any employer,

employment agency, or labor organization except where a primary objective of the Federal

financial assistance is to provide employment.” 42 U.S.C. § 2000d-3. The Seventh Circuit has held

that “Title VI authorizes remedial action if employment practices tend to exclude from

participation, deny benefits to, or otherwise subject the primary beneficiaries of a federal program

to discrimination in violation of 42 U.S.C. § 2000d.” Ahern v. Bd. of Educ. of City of Chicago, 133

F.3d 975, 977 (7th Cir. 1998). “Title VI does not provide a judicial remedy for employment

discrimination by institutions receiving federal funds unless (1) providing employment is a

primary objective of the federal aid, or (2) discrimination in employment necessarily causes

discrimination against the primary beneficiaries of the federal aid.” /d. at 978 (quoting Trageser

v, Libbie Rehab. Ctr., Inc., 590 F.2d 87 (4th Cir. 1978), abrogated on other grounds by Consol.

Rail Corp. v. Darrone, 465 U.S. 624 (1984)).

Undoubtedly for this reason, Deemar specifically disavows making a hostile work

environment claim and insists throughout her briefing that she is asserting a hostile educational

environment claim through Title VI. But she does not plausibly allege that the primary purpose of

the federal funding received by the District is to provide employment generally or provide

employment to Deemar specifically. Nor does she allege that the hostile environment to which she

was subject resulted in a denial of any educational benefits to which she may have been entitled.

No matter how severe or abusive her environment was, it could not have plausibly denied her

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access to educational benefits because she does not allege that she was a student at the school. The

Court agrees that Deemar fails to state a claim under Title VI for a hostile educational environment

because she has not plausibly alleged that she suffered from a hostile environment such that it

denied her from receiving educational benefits.

Accordingly, Deemar’s hostile educational environment claim is dismissed.

* * *

For the foregoing reasons, Deemar’s discrimination claim is dismissed for lack of subject

matter jurisdiction, and her hostile educational environment claim under Title VI is dismissed

pursuant to Rule 12(b)(6). Because it is not inconceivable that Deemar may be able to supplement

her pleadings as to (1) her standing and (2) the nature and purpose of federal funding received by

the District, the court cannot say that any amendment would be futile, and these dismissals are

therefore without prejudice.

fe Taap-f>

\ ‘ / | }

Dated: August 9, 2024 John J. Tharp,Jr0

United States District Judge

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