Anthony

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

NIESHA ANTHONY, as parent and

next friend of ZARIAH ANTHONY,

a minor,

Plaintiff,

v. Case No. 23-CV-00967-SPM

O’FALLON TOWNSHIP HIGH

SCHOOL DISTRICT 203 BOARD OF

EDUCATION, et al.,

Defendants.

MEMORANDUM AND ORDER

McGLYNN, District Judge:

This matter comes before the Court for consideration of a Motion for Summary

Judgment filed by Defendants O’Fallon Township High School (“OTHS”) District 203

Board of Education, Vice Principal Twana Dollison, Principal Richard Bickel, and

Superintendent Dr. Darcy Benway (Doc. 123). Having been fully informed of the

issues presented, the Defendants’ Motion for Summary Judgment is GRANTED.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

This case arises from incidents of alleged discrimination and retaliation

against Zariah Anthony by the Defendants while Zariah was enrolled at OTHS

during the 2021–22 (ninth grade) and 2022–23 (tenth grade) school years. (See Doc.

154). In the operative Third Amended Complaint, Niesha Anthony1 alleges that Vice

1 The original Complaint and First Amended Complaint contained claims brought by Niesha on

behalf of Zariah as well as claims brought on behalf of Niesha directly. (See Docs. 1, 26 This Court

Principal Dollison, in a meeting with Zariah and other students “to discuss the

bullying of ZARIAH’s friend by other students,” said “[a]ll the dark-skinned people

are causing all of the problems lately.” (Id., ¶¶ 22, 24). This “caused a substantial

detrimental effect on ZARIAH’s mental health and, having been made by a school

official in a position of trust and authority, substantially interfered with ZARIAH’s

ability to participate in or benefit from the services, activities and/or privileges

provided by OTHS.” (Id., ¶¶ 24, 29).

Once Zariah informed her mother of this incident, Niesha contacted Principal

Rich Bickel the same day. (Id., ¶ 31). Niesha alleges that, instead of conducting an

investigation, Bickel contacted Dollison and told her about the phone call from

Niesha. (Id., ¶ 37). Niesha alleges that Dollison then called her directly and that

Niesha terminated the phone call because she was “[s]tunned that Principal Bickel

had so flagrantly violated OTHS Board of Education Policy by informing Vice-

Principal Dollison of her racial complaint of harassment rather than conducting an

investigation.” (Id., ¶ 39). Niesha then called Superintendent Dr. Darcy Benway that

same day. (Id.). Dr. Benway allegedly “informed Niesha Anthony that Vice-Principal

Dollison could not have made a racist, harassing statement to ZARIAH or the other

OTHS students in attendance at the May 12, 2022, meeting.” (Id., ¶ 43). When the

parents of other students in the May 12 meeting contacted Dr. Benway, she informed

them of the same and allegedly refused to conduct an investigation. (Id., ¶¶ 48–50).

Niesha claims that Dollison “retaliated against ZARIAH by recording on ZARIAH’s

dismissed the claims brought on Niesha’s behalf due to lack of standing on January 23, 2024. (See

Doc. 38). All of the remaining claims are brought by Niesha on Zariah’s behalf. (See Doc. 154).

‘Student Discipline Report’ that Niesha Anthony had called to complain to Principal

Bickel and Superintendent Benway ‘about me being a racist.’” (Id., ¶ 53). Niesha

claims that “[t]he Defendants sought to conceal this act of retaliation by failing to

inform ZARIAH and/or Niesha Anthony that Vice-Principal Dollison recorded their

report of a racist statement made by Vice-Principal Dollison on ZARIAH’s

disciplinary record, and by failing to afford them notice or an opportunity to rebut,

appeal or grieve the patently retaliatory report.” (Id., ¶ 60).

On August 19, 2022 (after the 2022 summer break2), Zariah reported being

bullied and harassed by what she calls the “Gang of Bullies” on the same day. (Id.,

¶¶ 66–67). Niesha states that she called OTHS to request a meeting and that her

requests were ignored. (Id., ¶¶ 72, 74). Niesha states that on September 6, 2022,

Zariah physically defended herself in an altercation with the Gang of Bullies. (Id., ¶¶

78–90). Zariah was initially suspended out-of-school for ten days. (Id., ¶ 94).

Following a disciplinary hearing before the OTHS Board of Education September 12,

2022, Zariah was expelled from OTHS for the remainder of 2022–23 school year. (Id.,

¶ 108). Niesha claims that the note in Zariah’s Student Discipline Report stating that

Niesha accused Dollison of being a racist was explicitly used in support of the

expulsion. (Id., ¶¶ 109–10). Niesha alleges that this was in violation of Illinois law

and was a disproportionate response. (Id., ¶¶ 114–28).

2 In O’Fallon, high school is bifurcated into a campus for ninth-grade freshman (Milburn) and a campus

for upperclassmen (Smiley). See About OTHS, O’FALLON TWP. HIGH SCH.,

https://www.oths.us/district-info/about-oths [https://perma.cc/9SQV-JF24] (last visited Dec. 15, 2025).

Niesha Anthony initially filed a Complaint in state court in St. Clair County,

Illinois on February 23, 2023. (See Doc. 1, Ex. A). The Defendants removed the case

to this Court on March 24, 2023 (Doc. 1) and filed a Motion to Dismiss (Doc. 18) on

May 3, 2023. This Court granted Niesha leave to file an amended complaint (Doc. 24),

which was filed on July 31, 2023. (Doc. 26). Another Motion to Dismiss (Doc. 32) was

filed on September 19, 2023, with Niesha responding on October 3, 2023. (Doc. 34).

The Court held oral argument on November 29, 2023. (See Doc. 37). The Court

granted the Defendants’ Motion to Dismiss in part and denied it in part on January

23, 2024. (See Doc. 38). The Court entered a Scheduling Order on February 20, 2024.

(Doc. 46). Niesha filed a Second Amended Complaint on February 21, 2024. (Doc. 47).

While this Court granted Plaintiff permission to file a Third Amended Complaint (see

Doc. 118), Plaintiff did not do so until prompted at oral argument on December 9,

2025. (See Docs. 153, 154, 156).

The Defendants filed the instant Motion on July 18, 2025. In addition to a 51-

page brief3 (Doc. 126), they filed a 36-page Statement of Material Facts (Doc. 123)

and 1,237 pages of exhibits (Doc. 127). Plaintiff Anthony responded in opposition on

October 23, 2025 with a 30-page “summary of material facts,” 60 pages of argument,

some 247 pages responding to Defendants’ Statement of Material Facts, and another

539 pages of exhibits. (Docs. 140–42). The Defendants filed a Reply on November 17,

2025 along with a 296-page response in opposition to the “Response to Defendants’

Statement of Material Facts.” (Docs. 150, 152).

3 The Defendants also filed an amended version of page 25 of their brief due to formatting issues with

the original page 25. (See Doc. 123, p. 25; Doc. 128).

APPLICABLE LAW AND LEGAL STANDARDS

The court shall grant summary judgment “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014)

(quoting FED. R. CIV. P. 56(a)). Once the moving party has set forth the basis for

summary judgment, the burden then shifts to the nonmoving party who must go

beyond mere allegations and offer specific facts showing that there is a genuine issue

of fact for trial. FED. R. CIV. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–

23 (1986). Stated another way, the nonmoving party must offer more than

“[c]onclusory allegations, unsupported by specific facts,” to establish a genuine issue

of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v.

Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).

In determining whether a genuine issue of fact exists, the Court must view the

evidence and draw all reasonable inferences in favor of the party opposing the motion.

Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A genuine issue of material fact arises

only if sufficient evidence favoring the nonmoving party exists to permit a jury to

return a verdict for that party.” Faas v. Sears, Roebuck & Co., 532 F.3d 633, 640–41

(7th Cir. 2008) (quoting Springer v. Durflinger, 518 F.3d 479, 483 (7th Cir. 2008)).

The nonmovant cannot simply rely on its pleadings; the nonmovant must present

admissible evidence that sufficiently shows the existence of each element of its case

on which it will bear the burden of proof at trial. Midwest Imps., Ltd. v. Coval, 71

F.3d 1311, 1317 (7th Cir. 1995) (citing Serfecz v. Jewel Food Stores, 67 F.3d 591, 596

(7th Cir. 1995); Greater Rockford Energy & Tech. Corp. v. Shell Oil Co., 998 F.2d 391,

394 (7th Cir. 1993), cert. denied, 510 U.S. 1111 (1994); Celotex, 477 U.S. at 323–24).

ANALYSIS

Before discussing the legal arguments made by the parties, this Court must

take note of the voluminous briefing for the instant Motion. As noted supra, Plaintiff

submitted a 247-page “Response to Defendants’ Rule 56.1 Statement of Material

Facts in Support of Its Motion for Summary Judgment and Plaintiffs’ Statement of

Additional Material Facts” (Doc. 141) along with 539 pages of exhibits (Doc. 142). In

their Reply (Doc. 150), Defendants argues that “Plaintiffs response is solely designed

to overwhelm and frustrate this Court to achieve their goal of having the Court throw

up its hands and find that given the sheer volume of materials submitted by plaintiffs,

questions of fact must exist.” (Id., p. 2). They insist that Plaintiff’s Response violates

Local Rule 56.1 because “[t]he overwhelming majority of additional “facts” are

immaterial and not central to the legal arguments” and “[t]he statements contain

hearsay and are redundant by restating each witness’s version of the same events,

rather than presenting a single fact and citing to each witnesses’ testimony.” (Id.

(citing Sholes v. Bd. of Regents of Univ. Sys. of Georgia, No. CV 119-022, 2023 WL

2575570, at *1 (S.D. Ga. Mar. 20, 2023), aff'd sub nom. Sholes v. Anesthesia Dep’t,

No. 23-11291, 2024 WL 700438 (11th Cir. Feb. 21, 2024))). The district court in Sholes

noted that parties “may not, by the simple expedient of dumping a mass of evidentiary

material into the record, shift to the Court the burden of identifying evidence

supporting their respective positions.” 2023 WL 2575570, at *14 (quoting Preis v.

Lexington Ins. Co., 508 F. Supp. 2d 1061, 1068 (S.D. Ala. 2007)). The court continued,

writing that “[e]ssentially, the Court has no duty ‘to distill every potential argument

that could be made based upon the materials before it on summary judgment.’” Id.

(citing Preis, 508 F. Supp. 2d at 1068). While “an unweidly record and a mass of

factual assertions” often means that “there must be a genuine issue of material fact

somewhere,” that is not a guarantee. Goswami v. DePaul Univ., No. 12 C 7167, 2015

WL 251304, at *1 (N.D. Ill. Jan. 20, 2015) (citing U.S. ex rel. Yannacopoulos v. Gen.

Dynamics, 652 F.3d 818 (7th Cir. 2011)); see also id. (citing Adams v. Ameritech

Servs., Inc., 231 F.3d 414, 417 (7th Cir. 2000)).

The Seventh Circuit has held stated that “because summary judgment is not a

paper trial, the district court’s role in deciding the motion is not to sift through the

evidence, pondering the nuances and inconsistencies, and decide whom to believe.”

Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). “The court has one

task and one task only: to decide, based on the evidence of record, whether there is

any material dispute of fact that requires a trial.” Id. (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249–50 (1986); 10 WRIGHT, MILLER & KANE § 2712, at 574–

78). “The parties, in turn, bear a concomitant burden to identify the evidence that

will facilitate this assessment.” Id. Moreover, with respect to local court rules

requiring the parties to file statements of material facts, the Seventh Circuit “has

repeatedly recognized the importance and usefulness of this and similar local rules

throughout the circuit, as well as ‘the exacting obligation these rules impose on a

party contesting summary judgment.’” Little v. Cox’s Supermarkets, 71 F.3d 637, 641

(7th Cir. 1995) (quoting Waldridge, 24 F.3d at 921–22). The Seventh Circuit wrote

that “[t]hese rules serve to notify the parties of the factual support for their

opponent’s arguments, but more importantly inform the court of the evidence and

arguments in an organized way—thus facilitating its judgment of the necessity for

trial.” Id. Critically, “just as a district court is not required to ‘scour the record looking

for factual disputes,’ it is not required to scour the party’s various submissions to

piece together appropriate arguments. A court need not make the lawyer’s case.” Id.

(quoting Waldridge at 922); see also F.T.C. v. Bay Area Bus. Council, Inc., 423 F.3d

627, 634 (7th Cir. 2005) (quoting the same).

Here, Plaintiff’s Response to Defendants’ 142-paragraph, 30-page Statement of

Material facts is some 98 pages long and their own Statement of Additional Material

Facts is composed of 981 numbered paragraphs spread over 150 pages. (See Doc. 141).

Defendants’ Response to this Statement of Additional Material Facts is another 296

pages. (Doc. 152). The amount of briefing in this case is comparable to that in the

Second Amendment constitutional challenge adjudicated by this Court just over one

year ago. See Barnett v. Raoul, 756 F. Supp. 3d 564 (S.D. Ill. 2024), judgment entered,

No. 23-CV-00141-SPM, 2024 WL 5707234 (S.D. Ill. Dec. 9, 2024). While the parties

were permitted to exceed the Local Rule 56.1(e) page limits for argument, Plaintiff’s

submission of a Statement of Additional Material Facts so detailed that it itself

required a thirty-page summary shows the herculean effort that Plaintiff’s counsel

has made to prove that this case must be submitted to a jury. With that in mind, this

Court has made every effort to review all submitted materials to the maximum extent

possible. This Court commends both parties on their vigorous arguments made in

support of their respective clients—their efforts are a testament to their dedication.

Moving forward, the Court will address Plaintiff Anthony’s claims in the

sequence utilized by the Defendants in their Motion and supporting Brief (See Docs.

123, 126). This Court will endeavor to condense and crystallize the parties’ arguments

to the greatest extent possible.

I. Race-Based Discrimination (Title VI & ICRA, Counts 1 & 3)

Title VI of the Civil Rights Act of 1964 states that “no person 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’” that

is within the penumbra of Title VI. Alexander v. Sandoval, 532 U.S. 275, 278 (2001)

(quoting the Civil Rights Act of 1964, 78 Stat. 252, as amended, 42 U.S.C. § 2000d).

The statute specifically prohibits intentional discrimination. See id. at 280 (citing

Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 272 (1978)). In order to state a claim

for discrimination under Title VI, the plaintiff must allege that “(1) that they have

been intentionally discriminated against on the grounds of race; and (2) that

defendants are recipients of federal financial assistance.” Beaulieu v. Ashford Univ.,

529 F. Supp. 3d 834, 850 (N.D. Ill. 2021) (quoting Khan v. Midwestern Univ., 147 F.

Supp. 3d 718, 720 (N.D. Ill. 2015)), aff’d sub nom. Beaulieu v. Ashford Univ., LLC,

No. 22-1654, 2022 WL 17076691 (7th Cir. Nov. 18, 2022). The complaint must “allege

‘factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.’” Id. (quoting Adams v. City of

Indianapolis, 742 F.3d 720, 727 (7th Cir. 2014)). “In both the discrimination and

retaliation contexts, once the plaintiff has established his prima facie case, the

burden shifts to the defendant to provide a legitimate, nondiscriminatory reason for

the adverse employment action.”4 Scaife v. Cook County, 446 F.3d 735, 740 (7th Cir.

2006) (citing Firestine v. Parkview Health Sys., Inc., 388 F.3d 229, 233 (7th Cir. 2004),

overruled on other grounds by Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013). “If

the defendant has provided a legitimate reason, the burden shifts back to the plaintiff

to show that the defendant’s proffered reason is merely pretextual.” Id. (citing

Firestine, 388 F.3d at 233).

Pursuant to the ICRA, “no unit of state, county, or local government shall

‘exclude a person from participation in, deny a person the benefits of, or subject a

person to discrimination under any program or activity on the grounds of that

person's race, color, or national origin’” or “utilize criteria of methods of

discrimination that have the effect of subjecting individuals to discrimination because

of their race, color, or national origin.” McFadden v. Bd. of Educ. for Ill. Sch. Dist. U-

46, No. 05 C 0760, 2006 WL 6284486, at *8 (N.D. Ill. Oct. 3, 2006) (citing 740 ILL.

COMP. STAT. 23/5(a)(1)). “To state a prima facie claim under the statute, plaintiff must

allege that defendant ‘treated the plaintiffs differently because of their inclusion in

an identifiable and constitutionally protected class.’” Id. (citing Raymond S. v.

Sperlik, 2005 WL 3299810, at *5 (N. D. Ill. Nov. 30, 2005)).

4 “Title VI case law has traditionally borrowed jurisprudence from other civil rights laws with a similar

structure and purpose.” U.S. Dep’t of Just., C.R. Div., Title VI Legal Manual § VI, at 6 n.8; see also id.

(collecting cases) (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998) (“[Title VI] is

parallel to Title IX . . . . The two statutes operate in the same manner . . . .”); Liese v. Indian River Cty.

Hosp. Dist., 701 F.3d 334, 346 (11th Cir. 2012) (“Title IX, like the [Rehabilitation Act] was modeled

after Title VI, and the text of all three acts [is] virtually identical . . . .”); Darensburg v. Metro. Transp.

Comm’n, 636 F.3d 511, 519 (9th Cir. 2011) (looking to Title VII jurisprudence to analyze Title VI

claims)).

The Defendants categorize the alleged discrimination into six discrete

incidents:

(1) Dollison allegedly stating to [Zariah] that “[a]ll the dark-skinned

people are causing all of the problems lately;” (2) failing to conduct an

investigation into Niesha’s May 11, 2022 complaint about Dollison; (3)

disclosing Niesha’s and Zariah’s identity and their complaint to

Dollison; (4) finding that Dollison did not make a racist comment; (5)

documenting Niesha’s complaint in Skyward and failing to remove the

documentation; and (6) using Niesha’s complaint in suspending and

expelling Zariah.

(Doc. 126, pp. 2–3 (citing Doc. 123, Ex. 1, ¶¶ 135, 154)). The Defendants paint a

different story of both Niesha and Zariah’s interactions with Twana Dollison. It is

undisputed that Dollison met with four girls including Zariah and Ta’Myjah on March

25, 2022. (See id., ¶¶ 18–26). Both Zariah and Ta’Myjah claim that Dollison made a

racist comment about Black students. (Id., ¶ 21–22). Zariah claims that the statement

was “it’s been all the dark skin people causing the problems in the school lately” (id.,

¶ 22 (citing id., Ex. 14. 158:22–25, 164:19–23)); Ta’Myjah claims that statement was

““it’s always y’all people” (id., ¶ 21 (citing id., Ex. 25 20:16– 22:2)); and the other two

girls did not hear Dollison make any racist statements (id., ¶ 23 (citing id., Ex. 26

29:3–18, 30:8–13; id., Ex. 27 26:9–21)).

The Defendants state that Dollison later suspended Zariah’s best friend

Ta’Myjah Glasper on May 11, 2022 for skipping class and violating the dress code.

(Id., ¶¶ 27–43). Ta’Myjah’s mother Teresa Lowery “accused Dollison of being a racist

and threatened to have her fired”; the Defendants insist that Niesha and Zariah were

part of a coordinated effort to discredit Dollison. (See id., p. 2; see id., ¶¶ 27–43). They

argue that Niesha first left a voicemail message for Bickel on May 11 and that Bickel

referred the matter to Dollison (1) because the issue was at the freshman Smiley

campus (where Dollison was responsible for discipline) and (2) because Niesha’s

message did not mention any accusations of racism, only a concern about a

disciplinary issue. (Id., ¶¶ 39–42). When Dollison contacted her via phone, Niesha

swore at her and hung up on her. (Id., ¶ 43 (citing id., Ex. 15 108:15–21; id., Ex. 18

172:2–5)). Niesha also posted on Facebook accusing Dollison of being a racist.5 (Id., ¶

44 (citing id., Ex. 18 175:25–176:11; id., Ex. 14 176:20–178:3; id., Ex. 27 29:13–30:1;

id., Ex. 39)). Bickel and Dollison claim that they tried to resolve the situation with

Niesha via an in-person meeting at OTHS, but that Niesha did not appear for their

meeting. (Id., ¶¶ 47–52).

Regarding Dollison’s alleged statement, the Defendants argue that Zariah did

not speak with Dollison on May 12, 2022 (when the statement was alleged to have

taken place) and that, even if she had, that “the isolated ambiguous comment was

clearly not so severe, pervasive, and objectively offensive that it barred Zariah from

educational opportunities.” (Id., p. 5; see also id., p. 4). Regarding the investigation

(points (2) through (5) above), the Defendants argue that “Zariah presented no

evidence that the Board, or the OTHS administration, intentionally discriminated

against her on the basis of race by not investigating a complaint or by determining

Dollison did not make the alleged comment.” (Id., p. 6). They argue that, even if

Dollison made the alleged comment, “Benway’s decision to proceed as she did cannot

5 While Plaintiff insists that Niesha did not author this post during oral argument, the Defendants

insist that Zariah’s comment on the same post stating that “my mama ate” indicates that Niesha was,

indeed, the author. Plaintiff did not object to this assertion. (Doc. 157).

bind the Board unless the manner in which she proceeded was pursuant to a Board

custom to proceed that way.” (Id., p. 8 (citing Burks v. City of Philadelphia, No. CIV.

A. 95-1636, 1997 WL 45031 at *7 (E.D. Penn. Jan. 31, 1997))). They argue similarly

regarding Bickel informing Dollison of Niesha’s complaint and the documentation of

the interaction in Skyward (the electronic filing system used at OTHS). (See id., pp.

8–11). Regarding use of the information contained in Zariah’s file at her expulsion,

the Defendants argue that “there is no mystery as to why the Board voted the way

they did. This Court has the benefit of both the audiotape and transcript from the

hearing in which the Board members candidly share their thoughts and suggestions

for an appropriate disciplinary response for Zariah.” (Id., p. 12 (citing id., ¶¶ 123–

33)).

In opposition, Plaintiff Anthony argues that Defendants “distort testimony”

from the students present at the meeting where they claim Dollison made the

comment about “dark-skinned people.” (Doc. 140, p. 34). She insists that Dollison’s

alleged remark was not isolated because she “used a racial epithet, and later recorded

Zariah and Niesha’s complaint about her use of the racial epithet in Zariah’s ‘Student

Discipline Report.’” (Id., p. 35). Plaintiff also argues that “[t]hereafter, she repeatedly

falsely accused Niesha of making a Facebook post which detailed various racist

statements and actions by Dollison, and falsely accused Zariah of skipping class with

Ta Myjah” and “[t]hereafter Assistant Principal Howe threatened Zariah with “mob

action” and expulsion.” (Id. (citing SAMF, ¶ 523, 531–35)). Plaintiff argues that

Dollison’s comment and notes about it in Zariah’s Student Discipline Report, Bickel

and Benway’s refusal to investigate Niesha’s complaint, and Bickel’s disclosure of

Niesha’s identity to Dollison all evince a pervasive pattern of racial discrimination

that culminated in Zariah’s expulsion. (Id., pp. 32–48).

Thus, the heart of Plaintiff’s claim is Dollison’s alleged “racial epithet,” which

they argue is the first link in the chain that is “the totality of the evidence” presented

in this case.6 (See Doc. 157). Put another way, Plaintiff’s argument depends on there

being a nexus between Dollison’s comment, the Defendants’ purported lack of

investigation, Dollison’s notation in Skyward, and the Board’s deliberations with

respect to Zariah’s expulsion such that OTHS was a racially hostile environment.

Notably, the race-based harassment must be so severe or pervasive so as to deprive

the plaintiff of access to educational benefits. See Bryant v. Indep. Sch. Dist. No. I–

38, 334 F.3d 928, 934 (10th Cir. 2003); Monteiro v. Tempe Union High Sch. Dist., 158

F.3d 1022, 1033 (9th Cir. 1998); see also Qualls v. Cunningham, 183 F. App’x 564,

567 (7th Cir. 2006) (citing the same).

However, there are critical problems with Plaintiff’s arguments. First, recall

that Plaintiff insists that Dollison said something to the effect of “all the dark-skinned

people are causing all of the problems lately.” The definition of an “epithet” is “a

disparaging or abusive word or phrase.” Epithet, MERRIAM-WEBSTER.COM,

https://www.merriam-webster.com/dictionary/epithet [https://perma.cc/4Z56-KE4B]

(last visited Dec. 10, 2025). First, even if Dollison said this alleged sentence exactly

as transcribed, it arguably does not rise to level of being a “disparaging or abusive

6 This Court is cognizant of the holding in Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir.

2016) requiring all “direct” and “indirect” evidence to be considered together as a whole instead of in

separate buckets. See, e.g., Owens v. Old Wis. Sausage Co., Inc., 870 F.3d 662 (7th Cir. 2017) (citing

the same).

word or phrase.” Id. Dollison’s purported remark clearly does not rise to the level of

other openly vulgar and racially deprecatory language highlighted in race-based

discrimination cases. See, e.g., Atkins v. The Bremerton Sch. Dist., No. C04-577RBL,

2005 WL 1356261 at *2 (W.D. Wash. June 7, 2005) (teacher referred to three Black

students as “porch monkeys”); Afogho ex rel. A.A. v. Illinois Cent. Sch. Dist. 104 Bd.

of Educ., 421 F. Supp. 3d 585 (S.D. Ill. 2019) (teacher repeatedly referred to Black

students as his “slaves”); Watters v. Homeowners’ Ass’n at Pres. at Bridgewater, 48

F.4th 779, 785 (7th Cir. 2022) (“Notably, their neighbors asked the Watters why ‘you

people’ chose to move there, called Mrs. Watters a ‘black bitch’ and a ‘black n-----,’ and

called the Watters’ grandchildren ‘little monkey n------.’”). Moreover, even taking

Plaintiff’s recitation of Dollison’s remark as accurate, “isolated acts of racial animus

are not enough; there must be ‘some nexus’ between a stray remark and the

challenged action.” Watters, 48 F.4th at 786 (quoting Scaife v. Cook County, 446 F.3d

735, 741 (7th Cir. 2006), overruled on other grounds by Hill v. Tangherlini, 724 F.3d

965, 967 n.1 (7th Cir. 2013)) (citation modified)). Thus, even assuming that Dollison’s

comment rises to the level of being disparaging or abusive, the single comment by

itself is not sufficient to establish that OTHS was a racially hostile environment. See

Scaife, 446 F.3d at 741. (“When a plaintiff offers an employer’s stray remark in a

discrimination case, it is necessary to demonstrate ‘some nexus’ between the remark

and the challenged employment decision.” (citing Cowan v. Glenbrook Sec. Servs.,

Inc., 123 F.3d 438, 444 (7th Cir. 1997)).

To that end, Plaintiff insists that the failure of Defendants Bickel and Benway

to investigate Niesha’s claim that Dollison was a racist is evidence of discrimination.

(Doc. 140, pp. 34–46). Much is made about the fact that Bickel and Benway did not

treat Niesha’s voicemail and phone calls as race-based grievances. (Id., pp. 37–44).

However, Niesha stated in her deposition that she initially left Bickel a voicemail

stating that “I needed to discuss a issue of what one of his principals had stated to

my daughter and her friends and that I was wanting him to give me a call back

immediately.” (Doc. 127, Ex. 14 106:23–107:12). She states that Bickel later returned

her call (she isn’t sure when) and told her that he would get back to her. (Id., Ex. 14

107:4–17). Niesha then states that Dollison called her and expressed confusion

because Dollison had not disciplined Zariah. (Id., Ex. 14 103:3–14). Niesha says that

she responded as follows: “I said, bitch why are you calling my mother-f**king phone.

I didn’t call -- I said I didn’t – I don’t want to talk to you. If I wanted to talk to you,

then I would have called you. I said, so I don’t know why Mr. Bickel called you and

told you to call me, and I hung up in her face.” (Id., Ex. 14 108:16–21). She says she

then spoke again with Principal Bickel, cursed at him, and accused him of telling

Dollison about her “confidential” complaint. (Id., Ex. 14 108:22–109:13). Niesha says

that she spoke with Superintendent Benway as well; she told Benway about her

complaint made to Bickel and about her interactions with Bickel and with Dollison.

(Id., Ex. 14 111:2–112:24). Niesha states that Benway told her that she didn’t believe

that Dollison would have said what she did to Zariah and the other students; Niesha

insisted that she believed her daughter, “said a curse world to her,” hung up on her,

and never contacted her again. (Id.). Both Plaintiff and Defendants agree that Niesha

did not speak with Dollison, Bickel, or Benway again after these phone calls.

Plaintiff also insists that there have been various complaints against Dollison

and insists that the failure to investigate rises to the level of deliberate indifference

to Dollison’s purported racism. (Doc. 140, p. 39 (citing SAMF ¶¶ 120, 126–27, 129, 31,

136, 142–44, 147, 167–68, 170–74, 211, 217, 219–24, 230, 232–36, 239–40, 243–44,

248, 250, 252–53, 257, 259–61)). Plaintiff asserts that “[t]These events, taken

together, qualify as ‘objectively offensive’ so as to create a hostile educational

environment that effectively bars Plaintiff’s access to an educational opportunity or

benefit.” (Doc. 140, p. 38 (quoting Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of

Educ., 526 U.S. 629, 633 (1999)) (citing C.S. v. Couch, 843 F. Supp. 2d 894, 908 (N.D.

Ind. 2011)). Plaintiff insists that Zariah experienced “deprivation of access to

educational benefits, severe humiliation, embarrassment, degradation, mental

anguish, and emotional and physical distress.” (Id.). However, although Plaintiff

asserts that Zariah experienced “deprivation of access to education benefits,” she does

not provide any evidence about how Zariah’s education was negatively impacted

specifically by Dollison’s alleged comment. See, e.g., Elagha v. Nw. Univ., No. 24 C

12066, 2025 WL 1384291, at *5 (N.D. Ill. May 13, 2025) (“Nor does Elagha adequately

allege that she was deprived of educational benefits while the harassment was

ongoing. ‘Examples of a negative impact on access to education may include dropping

grades, becoming homebound or hospitalized due to harassment, or physical

violence.’” (quoting Gabrielle M. v. Park Forest-Chi. Heights, 315 F.3d 817, 823 (7th

Cir. 2003))). Both Plaintiff and the Board both state that Zariah was a good student

both before and after the meeting with Dollison. (See Doc. 140, p. 59; see also Doc.

127, Ex. 2 50:14–22). Put another way, Plaintiff cannot simultaneously claim that

Zariah was effectively barred from access to education while also claiming that her

expulsion was overbroad because Zariah was such a good student and admittedly had

zero disciplinary incidents prior to her explusion.

Crucially, even if we assume that Dollison’s statement is “severe and pervasive

harassment,” “[a]n institution is not deliberately indifferent under Title VI if it

responds quickly and reasonably, in light of the circumstances it actually knows

about, to any incidents of ‘severe, pervasive, and objectively offensive’ conduct.”

Elagha, 2025 WL 1384291, at *6 (citing Jauquet v. Green Bay Area Cath. Educ., Inc.,

996 F.3d 802, 809 (7th Cir. 2021)). “This standard ‘requires that the school's response

not be clearly unreasonable, which is a higher standard than reasonableness.’” Id.

(quoting Moore v. Freeport Cmty. Unit Sch. Dist. No. 145, 570 F. Supp. 3d 601, 607

(N.D. Ill. 2021)). “A school’s response will ‘suffice to avoid institutional liability so

long as it is not so unreasonable, under all the circumstances, as to constitute an

“official decision” to permit discrimination.’” Id. (quoting C.S. v. Madison Metro. Sch.

Dist., 34 F.4th 536, 543 (7th Cir. 2022)). Additionally, “[a] response need not be

perfect or even successful to clear this bar. A ‘negligent response,’ for example, ‘is not

unreasonable, and therefore will not subject a school to [Title VI] liability.’” Id.

(quoting Moore, 570 F. Supp. 3d at 607). Moreover, victims do not “have license to

demand specific remedial actions from the school.” Id. (quoting Moore at 607) (citing

Doe v. Galster, 768 F.3d 611, 617 (7th Cir. 2014)).

Here, this Court holds that Dollison, Bickel, and Benway’s conduct was not

clearly unreasonable. It is obvious to this Court what transpired here. Niesha left an

amorphous voicemail for Bickel regarding discipline for her daughter. After speaking

with Niesha, Bickel attempted to deescalate what he viewed as a clear

misunderstanding since Zariah had not been disciplined by Dollison. Niesha

admittedly swore and yelled at Dollison, at Bickel, and at Benway when each

attempted to speak with her. Dollison then made a notation about the call in

Skyward. While Plaintiff insists that Bickel and Benway refused to and failed to

investigate Dollison for racism in accordance with the OTHS policies, it is debatable

whether Niesha’s calls can be considered even an informal complaint about race-

based discrimination. A protected activity under Title VII is required to be “some step

in opposition to a form of discrimination that the statute prohibits.” Ferrill v. Oak

Creek-Franklin Joint Sch. Dist., 860 F.3d 494, 501 (7th Cir. 2017) (quoting O’Leary v.

Accretive Health, Inc., 657 F.3d 625, 631 (7th Cir. 2011)). While an “informal”

complaint can be considered a protected activity, see, e.g., McDonnell v. Cisneros, 84

F.3d 256, 258 (7th Cir. 1996), it is not clear whether a reasonable school official would

code Niesha’s admittedly inflammatory and profanity-riddled calls with staff as

sufficient to initiate an investigation, especially when Dollison did not actually

discipline Zariah. All in all, Plaintiff’s argument that Bickel and Benway failed to

investigate the Black female vice principal for racism against her Black female

daughter who was, at this point, not formally disciplined in any way, strains

credulity. Thus, even if Bickel and Benway were negligent in failing to open a formal

racial grievance on behalf of Niesha Anthony, their response was not clearly

unreasonable.

Next, Defendants Bickel and Benway both stated in their depositions that the

“Student Discipline Report” function in Skyward is used by staff for all annotations

related to a particular student including parent-teacher conferences, phone

interactions, and more. (See Doc. 127, Ex. 16 46:2–48:3; id., Ex. 17 31:3–32:18). The

fact that the function is titled “Discipline” does not indicate the disposition of the

information contained therein. Plaintiff has argued since the inception of the case

that the fact that this annotation was made in the “Student Discipline Report” section

is evidence of discrimination and retaliation. However, this Court meticulously

reviewed the transcripts of both the closed and open Board sessions related to

Zariah’s and Ky’esha Brewer’s expulsions. (Id., Exs. 2, 4). The notation made by

Dollison is only mentioned once during the entirely of Zariah’s September 12

disciplinary hearing: Board Member Johnson asked “[t]the incident that you spoke of

from last year, is that the one where they accused Ms. Dollison” and the Speaker

responded “I really don’t know when it occurred last year or as a freshman. It was

something to do with Ms. Dollison, but I’m not sure exactly what happened.” (Id., Ex.

2 50:23–25; 51:4–7). That is the entire exchange which Plaintiff claims is clear

evidence that the Board improperly considered the Skyward notation when

considering Zariah’s discipline.

We now reach the Board session itself. Zariah and Niesha were both present

at the session and were allowed to testify and to present evidence. (See Doc. 127, Ex.

2). The Defendants argue that “[a]s to the Board’s deliberative process, there is no

mystery as to why the Board voted the way they did.” (Doc. 126, p. 12). Plaintiff insists

that Zariah’s “fight” was actually a “near fight” because she did not make contact

with Ky’esha, that more egregious fights did not result in expulsion, that the

administrators misled the Board, and that Dollison’s comment in Skyward (which

was included in the packet of materials for Board Members) prejudiced the Board

members. (Doc. 140, pp. 46–48, 55–59).

Zariah was suspended after the incident and referred to the Board for “fighting

and gross misconduct, including flagrant disregard for adult safety directives,

noncompliance with adult intervention, and creating severe and disruption and

disorder to the school environment.” (Doc. 127, Ex. 2 6:14–24, 7:25–8:13). Niesha

Anthony testified at that hearing that Zariah “did wrong because was separated and

did enter that room. But at the time she was fed up. She was tired.” (Id., Ex. 2 16:13–

15). Moreover, Niesha states that “I said I take full responsibility. I didn’t deny that

my -- she was wrong, and I told her that. She was wrong. That child should never had

entered that classroom.” (Id., Ex. 2 36:3–6). Moreover, although Superintendent

Benway stated that she was not comfortable with showing video footage (id., Ex. 2

29:18–21), the Board was shown the footage from the school security cameras as well

as cell phone footage taken by another student that Niesha provided (id., Ex. 2 31:23–

37:15). The Board extensively discussed the appropriate disciplinary sanction and all

of the relevant mitigating factors, including the fact that Zariah had been bullied.

(Id., Ex. 2). As an example, Board Member Brown expressed that the situation felt

like a “good kid in a bad situation,” but stated that a situation where four girls were

“running around trying to fight” was a situation that could not happen. (Id., Ex. 2

86:10–87:3).

As discussed supra, it was noted that Zariah had zero disciplinary incidents at

either the Smiley freshman campus or the sophomore campus at OTHS. (Doc. 127,

Ex. 2 50:7–13). It was noted that she was “right on track to graduate.” (Id., Ex. 2

50:21). When asked why Zariah chose to throw a punch, she stated:

Anybody else would have done the same thing I did in that situation.

When your adrenaline is running and you’re mad, what do you expect

me to do? Just stop screaming and yelling? Because I’m angry. I’m fed

up with whatever their bullying, whatever they’re doing. I wasn’t

thinking in that moment because I was angry. I don’t know what you

want me to do.

(Id., Ex. 2 49:11–18). Later, when asked to make a statement, Zariah said the

following:

I just feel like everybody mad at me for what happened and that’s not

the case at all. These girl on the first day of school because I felt like I

need to do what have to be done to get it to stop, which I don’t think it

worked because they want to fight me when I come back to school, but I

don’t want to attend this school anymore because everybody blaming me

for it.

(Id., Ex. 2 62:5–13).

While Board Member Johnson expressed concern with a whole year of

expulsion (id., Ex. 2 89:3–6) and voted against expulsion, at the conclusion of

Ky’esha’s disciplinary hearing on September 19 (one week after Zariah’s hearing),

Johnson stated that “I just want to say to the board members and administration,

after I went home, looked at the tape, thought about it, I think the board made the

right decision. So I just want to put that on the record.” (Id., Ex. 4 63:23–64:3).

Considering the above, it is clear that Zariah’s expulsion does not turn on

whether the incident in question was as a “fight” versus a “near fight,” but rather on

the admitted and undisputed fact that Zariah went into the classroom after Ky’esha

was contained and continued to try to hit her, refusing to stand down or to follow the

commands of school administrators trying to contain the situation. To summarize,

Superintendent Benway, Principal Bickel, OTHS administrators, and the Board

discussed the circumstances of the situation in detail prior to rendering a disciplinary

sanction. Niesha and Zariah were both present, provided video evidence, and made

statements admitting and taking responsibility for Zariah’s actions. Finally,

Dollison’s note in Skyward was only mentioned once in passing.

Therefore, this Court holds that a reasonable factfinder could not conclude that

officials at OTHS discriminated against Zariah in violation of Title VI and the ICRA.

Plaintiff’s attempt to link Dollison’s statement, Benway and Bickel’s actions, and

Dollison’s Skyward entry with Zariah’s expulsion fails. Thus, Counts 1 and 3 of

Plaintiff’s Third Amended Complaint cannot survive the Defendants’ Motion for

Summary Judgment and must be dismissed.

II. Race-Based Retaliation (Title VI & ICRA, Counts 2 & 4)

“To succeed on a claim for retaliation under Title VI, a plaintiff must establish

that (1) she engaged in protected activity, (2) her educational institution took an

adverse action against her, and (3) a causal connection existed between the protected

activity and the adverse action.” Brown v. William Rainey Harper Coll., No. 16 C

1071, 2017 WL 3278822, at *5 (N.D. Ill. Aug. 1, 2017) (citing Peters v. Jenney, 327

F.3d 307, 320 (4th Cir. 2003)); Weiler v. Village of Oak Lawn, 86 F. Supp. 3d 874,

889–90 (N.D. Ill. 2015); Su v. E. Ill. Univ., 565 Fed. Appx. 520, 521–22 (7th Cir.

2014)). Additionally, “[f]iling an official complaint constitutes protected activity, for

which employees of federally-funded programs may not retaliate, as long as the

underlying complaint asserts that the plaintiff is suffering discrimination because of

the plaintiff’s protected class.” Id. (citing Tomanovich v. City of Indianapolis, 457

F.3d 656, 663 (7th Cir. 2006)).

The ICRA encompasses retaliation claims as well as discrimination claims

“even absent an explicit textual reference to ‘retaliation’—because retaliation is a

form of discrimination and enforcement of anti-discrimination statutes would be

undermined if it were not interpreted that way.” Cary v. Ne. Illinois Reg’l Commuter

R.R. Corp., No. 19 C 03014, 2020 WL 1330654 (N.D. Ill. Mar. 22, 2020) (citing CBOCS

West, Inc. v. Humphries, 553 U.S. 442, 452-53 (2008); Jackson v. Birmingham Bd. of

Educ., 544 U.S. 167, 176-77 (2013); Sullivan v. Little Hunting Park, Inc., 396 U.S.

229, 237 (1969), abrogated by Ziglar v. Abbasi, 582 U.S. 120 (2017)).

Zariah alleges that the OTHS Board took the following actions in retaliation

against her because of Dollison’s alleged statement:

(1) [R]efusing to conduct an investigation into Niesha’s May 11, 2022

complaint about Dollison; (2) disclosing Niesha’s and Zariah’s identity

and their complaint to Dollison; (3) directing Dollison to call Niesha; (4)

finding that Dollison did not make a racist comment; (5) documenting

Niesha’s complaint in Skyward, failing to notify Zariah and Niesha of

this documentation, and failing to remove the documentation; (6) using

Niesha’s complaint in suspending and expelling Zariah; (7) suspending

Zariah for 10 days; (8) expelling Zariah for the remainder of the 2022-

2023 school year; (9) seeking to otherwise intimidate Zariah; and (10)

permitting, causing, or contributing to numerous other acts of

discriminatory and retaliatory conduct against Zariah, Niesha, and

others to intimidate them for their opposition to racially discriminatory

acts [by] the Board.

(Doc. 126, pp. 13–14 (citing Doc. 123, Ex. 1, ¶¶ 147, 165)). First, the Defendants argue

that Zariah herself did not engage in any protected activity and lacks standing to sue

entirely because the “basis for her retaliation claim is not her own conduct, but the

conduct of her parent.” (Id., p. 14). They claim that the requirements for third-party

standing are not met here. (See id., p. 15 (citing Massey v. Wheeler, 221 F.3d 1030,

1035 (7th Cir. 2000))). The Defendants insist that the only adverse action taken

against Zariah was to discipline her for her conduct in the September 6, 2022

altercation and that “there is no causal connection between Dollison’s Skyward entry

from May 12, 2022 and Zariah’s suspension and expulsion.” (Id., p. 16). They point to

the records of the Board’s disciplinary hearing and the fact that “Ky’Esha received

the same discipline as Zariah and there is no evidence that Ky’Esha or her family

ever complained to administrators of racism.” (Id., p. 17 (citing id., ¶¶ 115, 134–35)).

In opposition, Plaintiff insists that Niesha reported Dollison’s purported racist

statement on behalf of Zariah, meaning that her complaint to the administration was

ipso facto made by her daughter. She cites only an out-of-circuit district court case,

Jackson v. Katy Indep. Sch. Dist., 951 F. Supp. 1293 (S.D. Tex. 1996), for this

proposition. (See Doc. 140, pp. 49–50 (citing the same)). She also cites this Court’s

own holding that she had stated a claim in response to Defendants’ Rule 12(b)(6)

Motion to Dismiss. (Doc. 140, p. 50 (citing Anthony v. O’Fallon Township High Sch.

Dist. 203 Bd. Of Educ., 712 F.Supp.3d 1109, 1120 (S.D. Ill. 2024)). Plaintiff insists

that “[i]t would not be unreasonable for a jury to conclude that, given the

circumstances, Zariah depended on her mother to make the report to the appropriate

school officials.” (Doc. 140, pp. 51–52). Plaintiff also insists that Dollison intentionally

falsely identified Zariah in a video of students skipping class (id., p. 54) and insist

that the Defendants misapplied their own policies in Zariah’s expulsion (id., pp. 55–

60).

As this Court discussed the factual background of this case in detail in Section

I, we will not reproduce that discussion here. First, although Defendants argue that

Niesha’s speech cannot be used as the basis for retaliation against Zariah (see Doc.

126, p. 15 (citing Massey v. Wheeler, 221 F.3d 1030, 1035 (7th Cir. 2000))), this Court

finds that holding as such would create perverse outcomes. As Defendants note, the

Seventh Circuit stated in Massey that “[t]he Supreme Court has established a narrow

exception to this doctrine, allowing third-party claims when the third-party plaintiff

can show a close relationship between the first and third party and some obstacle to

the first party’s ability to protect his own interest.” 221 F.3d at 1035 (citing Powers

v. Ohio, 499 U.S. 400, 411, 111 S. Ct. 1364, (1991); Shimer v. Washington, 100 F.3d

506, 508 (7th Cir. 1996)). Clearly, a minor child like Zariah cannot be required to

make a race-based discrimination complaint on her own behalf. As discussed at oral

argument, it would be preposterous to require a second grader to make a complaint

of discrimination on his or her own behalf; clearly, parents must be able to advocate

on behalf of minor children in the face of purported discrimination. (See Doc. 157).

Thus, it is clear that, regardless of the dearth of caselaw addressing this precise

factual situation, it is possible and plausible for a child to be subject to retaliation

based on the parent’s activity. Therefore, this Court holds that Plaintiff has standing

to use her complaint to the OTHS administration as the protected activity here.

Additionally, Zariah’s expulsion was, clearly, an adverse action in line with the third

element of a Title VI retaliation claim. See Brown v. William Rainey Harper Coll.,

No. 16 C 1071, 2017 WL 3278822, at *5 (N.D. Ill. Aug. 1, 2017) (citing Peters v. Jenney,

327 F.3d 307, 320 (4th Cir. 2003)); Weiler v. Village of Oak Lawn, 86 F. Supp. 3d 874,

889–90 (N.D. Ill. 2015); Su v. E. Ill. Univ., 565 Fed. Appx. 520, 521–22 (7th Cir.

2014)).

However, Plaintiff’s argument falls apart at the requirement of a causal

connection between the protected speech and the adverse action. The Seventh Circuit

has stated that “that the court is not a ‘super personnel department that second-

guesses employers’ business judgments.’” Murphy v. Caterpillar Inc., 140 F.4th 900,

915 (7th Cir. 2025) (quoting Riley v. Elkhart Community Schs., 829 F.3d 886, 895 (7th

Cir. 2016)). “To say that an employer’s justification is a pretext means to say that it

is ‘a lie, specifically a phony reason for some action.’” Id. at 914 (citing Kinney v. St.

Mary’s Health, Inc., 76 F.4th 635, 646 (7th Cir. 2023)). Moreover, “evidence of pretext

does not require but does permit an inference of unlawful motive, meaning that

summary judgment should be denied and the ultimate question of motive given to the

trier of fact to decide.” Id. at 915 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

511 (1993); Vichio v. U.S. Foods, Inc., 88 F.4th 687, 694–95 (7th Cir. 2023); Testerman

v. EDS Tech. Prods. Corp., 98 F.3d 297, 303 (7th Cir. 1996)). Additionally, “an

employer’s shifting and inconsistent explanations for an adverse employment action

can support an inference of pretext.” Id. (citing Appelbaum v. Milwaukee Metro.

Sewerage Dist., 340 F.3d 573, 579 (7th Cir. 2003); Schuster v. Lucent Techs., Inc., 327

F.3d 569, 577 (7th Cir. 2003)).7

As discussed in Section I, Plaintiff has not met her burden to prove the Zariah’s

expulsion was causally connected to Niesha’s phone calls to Dollison, Bickel, and

7 See supra note 4.

Benway alleging that Dollison was a racist or that the Board’s decision to expel Zariah

was pretextual. As noted supra, the Board explained their reasoning for Zariah’s

expulsion in great detail; the Board Members’ concerns and justification for Zariah’s

expulsion are clear. While Plaintiff insists that Zariah was expelled because of

Niesha’s complaints, it is obvious from the record that Zariah was expelled because

of Zariah’s own actions in the incident with Ky’esha Brewer. Plaintiff’s attempts to

connect Dollison’s comment in Skyward with Zariah’s expulsion fail to rebut the

Defendants’ Motion for Summary Judgment. Nowhere were the Board’s justifications

“shifting or inconsistent.” Rather, the Defendants have advanced the same reasoning

for Zariah’s expulsion since day one: she was expelled for gross disobedience

stemming from the incident with Ky’esha.

As the Seventh Circuit has noted, “[s]peculation does not create a genuine issue

of fact; instead, it creates a false issue, the demolition of which is a primary goal of

summary judgment.” Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 932 (7th Cir. 1995).

Zariah has not presented any admissible evidence that Dollison, the Board, or any of

the Defendant administrators retaliated against her in any way. As noted supra, the

fight at issue was filmed on video, both Zariah and Ky’esha and their parents were

given the opportunity to testify and present evidence to the School Board at separate

hearings, and both were expelled as a result of it. Moreover, Zariah’s own statements

did not express remorse and indicated that she believed there would be more fighting

if she returned to school. (Doc. 127, Ex. 2 49:11–18, 62:5–13).

Therefore, considering all of the above and taking the facts in the light most

favorable to Plaintiff, this Court holds that a reasonable factfinder could not find in

her favor. Thus, she has failed to rebut Defendants’ Motion for Summary Judgment

and Counts 2 and 4 of her Third Amended Complaint must be dismissed, as well.

III. Equal Protection (Fourteenth Amendment, Counts 5 & 7)

To levy a claim under 42 U.S.C. § 1983, “a plaintiff must allege that he or she

was (1) deprived of a federal right, privilege, or immunity (2) by any person acting

under color of state law.” Brown v. Budz, 398 F.3d 904, 908 (7th Cir. 2005) (quoting

Gomez v. Toledo, 446 U.S. 635, 638 (1980)). “To state a claim under § 1983 for local

governmental liability under Monell, a plaintiff must allege that her harm resulted

from a constitutional violation and that the local governmental body is responsible

for the violation.” Moore, 570 F. Supp. 3d at 612 (citing Collins v. City of Harker

Heights, 503 U.S. 115, 120 (1992) (referring to Monell). “Local governmental liability

under § 1983 is limited to violations caused by (1) an express policy, (2) a widespread

practice so well-settled it becomes a custom, or (3) a person with final policymaking

authority for the local governmental body.” Id. (citing Spiegel v. McClintic, 916 F.3d

611, 617 (7th Cir. 2019)). There must be a constitutional violation in order for a school

board to be liable under Monell. Id. (citing City of Los Angeles v. Heller, 475 U.S. 796,

799 (1986); Sallenger v. City of Springfield, 630 F.3d 499, 505 (7th Cir. 2010)).

Additionally, to establish liability in a § 1983 equal protection claim, the plaintiff

“must show that [the defendant] acted with a nefarious discriminatory purpose and

discriminated against her based on her membership in a definable class.” D.S. v. E.

Porter Cnty. Sch. Corp., 799 F.3d 793, 799 (7th Cir. 2015) (citing Nabozny v. Podlesny,

92 F.3d 446, 453 (7th Cir. 1996)).

The Defendants argue that “[w]hile Zariah may not agree with the Benway’s

findings and decision, that does not raise a constitutional issue, especially when

Zariah failed to exercise her right to file a formal grievance and elevate the matter

under Board Policy 2:260.” (Doc. 126, p. 23). They insist that Dollison’s alleged May

12, 2022 statement is not actionable, and that Dollison, Bickel, and Benway’s actions

taken regarding Niesha’s complaints did not violate Zariah’s equal protection rights.

(See id., pp. 23–26).

Plaintiff insists that there was widespread knowledge among the school

administration and student body that Dollison was a racist and discriminated against

black students, including the organization of a protest against her. (Doc. 140, pp. 60–

66). She insists that this converts Dollison’s allegedly isolated racial epithet into a

pattern of harassment sufficient to make her equal protection claim actionable. (Id.,

pp. 66–69). The Defendants insist in their Reply that Plaintiff has not provided a

suitable comparator, meaning that her equal protection claim cannot survive. (Doc.

150, p. 5).

First, Plaintiff’s Third Amended Complaint apparently attempts to bring both

discrimination and retaliation claims pursuant to the Equal Protection Clause.8 (See

Doc. 154, ¶¶ 170, 198). However, recall that “the right to be free from retaliation may

8 This is curious because this matter was already addressed in this Court’s January 23, 2024 Order on

the Defendants’ Motion to Dismiss. (See Doc. 38, p. 25 (“The equal protection discrimination claim in

Count 7 thus survives the Motion to Dismiss. Moreover, although Anthony lists the Counts 8–10 as

being for “retaliation” under the Equal Protection Clause and the First Amendment, as stated supra,

the Equal Protection Clause does not create a right to be free from retaliation except as a form of

discrimination (i.e., the Equal Protection Clause does not create a separate cause of action for

retaliation). As she is able to bring these claims as part of an equal protection discrimination claim

and as a First Amendment claim, the Court reads these claims as such. With this in mind, Counts 7,

8, 9, and 10 survive the OTHS Defendants’ Motion to Dismiss.”).

be vindicated under the First Amendment or Title VII,9 but not the equal protection

clause.” Boyd v. Ill. State Police, 384 F.3d 888, 898 (7th Cir. 2004) (citing Grossbaum

v. Indianapolis–Marion Cnty. Bldg. Auth., 100 F.3d 1287, 1296 n.8 (7th Cir. 1996);

Gray v. Lacke, 885 F.2d 399, 414 (7th Cir. 1989); Vukadinovich v. Bartels, 853 F.2d

1387, 1391–92 (7th Cir. 1988); Watkins v. Bowden, 105 F.3d 1344, 1354 (11th Cir.

1997); Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir. 1996); Ratliff v. DeKalb County, 62

F.3d 338, 340–41 (11th Cir. 1995); Thompson v. City of Starkville, 901 F.2d 456, 468

(5th Cir. 1990)). Thus, as a matter of law, Zariah cannot bring a retaliation claim

under the Equal Protection Clause. This leaves her with a discrimination claim

against Dollison and the Board.

Moving forward, “a § 1983 plaintiff can demonstrate that the defendant treated

him differently ‘either by statistical analysis or by identifying a particular similarly

situated member of the unprotected class who was treated differently from him.’”

Gaines v. Dart, 158 F.4th 829, 835 (7th Cir. 2025) (quoting Alston v. City of Madison,

853 F.3d 901, 906 (7th Cir. 2017)). Critically, Plaintiff has provided neither statistical

evidence nor evidence from suitable comparators to show that she was treated

differently because of her race. Like in Gaines, Plaintiff insists that Dollison

discriminated against other Black students but provides no admissible evidence that

Dollison treated non-Black students differently. She does not mention a suitable

comparator in her Memorandum in Opposition to Defendants’ Motion for Summary

Judgment (Doc. 140). She mentions that Dollison herself recalled that Ta’Myjah

9 See supra note 4.

Glasper accused her of being harder on Black girls’ wardrobe choices than white girls’

clothing. (Doc. 141, ¶ 31). However, Ta’Myjah testified in her deposition that she

never witnessed white girls being treated differently by Dollison. (Doc. 127, Ex. 25

84:4–18). Plaintiff also mentions another unnamed teacher stating that a Black

student felt that Dollison’s conduct showed a discrepancy between allowed attire for

Black young women and white young women. (Id., ¶ 56). Critically, all of these

statements are hearsay, which is inadmissible at summary judgment as at trial.10

Murphy v. Caterpillar Inc., 140 F.4th 900, 907 (7th Cir. 2025) (“Evidence supporting

and opposing a motion for summary judgment must be admissible in the same

manner as at trial, except that parties may rely on sworn declarations in lieu of live

testimony.”) (citing Baines v. Walgreen Co., 863 F.3d 656, 662 (7th Cir. 2017); FED. R.

CIV. P. 56(c)(2); Malin v. Hospira, Inc., 762 F.3d 552, 554–55 (7th Cir. 2014); Widmar

v. Sun Chem. Corp., 772 F.3d 457, 460 (7th Cir. 2014)). Additionally, Plaintiff

mentions a 2022 school-wide “Wear Red Day” protest against Dollison, but does not

state that Zariah participated in this protest. (Doc. 140, p. 64).

Similarly to Gaines, Plaintiff encounters critical issues with the element of

causation. 158 F.4th at 835–38. Even if Plaintiff had provided sufficient evidence to

show that Bickel and Benway harbored racial animus toward her, it was the Board,

not either of them, who made the final decision regarding Zariah’s expulsion.

Although Plaintiff insists that Assistant Principal Howe (who is not named as a

10 As an aside, this Court notes that these two statements were located in Plaintiff’s voluminous

Statement of Additional Material Facts (Doc. 141) and evinces the character of that document in

microcosm (i.e., various non-material and inadmissible statements).

Defendant here), Bickel, and Benway influenced the Board’s decision, this argument

is belied by the transcript of the Board hearing. (Doc. 127, Ex. 2). Plaintiff has not

provided any evidence that Howe, Bickel, or Benway harbored racial animus toward

her and that their animus was impermissibly injected into the Board proceedings via

the “cat’s paw” theory of liability.11 See Gaines at 835–38.

Recall that “summary judgment ‘is the put up or shut up moment in a lawsuit,

when a party must show what evidence it has that would convince a trier of fact to

accept its version of the events.’” Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir.

2008) (quoting Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (citing Hammel v.

Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)). Moreover, in order to

“preclude summary judgment, the non-moving party must show the disputed fact to

be material, that is, it must be outcome-determinative under the applicable law.

Thus, facts not outcome-determinative . . . , though in dispute, may still permit the

entry of summary judgment.” Smith ex rel. Smith v. Severn, 129 F.3d 419 (7th Cir.

1997) (quoting Wainwright Bank & Trust Co. v. Railroadmens Fed. Sav., 806 F.2d

146, 149 (7th Cir. 1986)). Plaintiff has not provided material, admissible facts to rebut

the Defendants’ Motion for Summary Judgment with respect to Counts 5 and 7. Thus,

in absence of evidence of a suitable comparator, Plaintiff’s equal protection claims are

dead in the water and must be dismissed.

11 The “cat’s paw” theory of liability is discussed in greater detail in Section IV infra.

IV. Retaliation (First Amendment, Counts 6, 8, 9 & 10)

First Amendment retaliation claims consist of three elements. “First, [the

plaintiff] must show he engaged in protected First Amendment activity. Second, he

must show an adverse action was taken against him. Third, he must show his

protected conduct was at least a motivating factor of the adverse action.” Holleman

v. Zatecky, 951 F.3d 873, 878 (7th Cir. 2020) (citing Bridges v. Gilbert, 557 F.3d 541,

546 (7th Cir. 2009)).

The Defendants argue again that Zariah did not engage in any protected

activity sufficient to grant her standing to bring a First Amendment retaliation claim.

(Doc. 126, p. 28; see also id., Section II). They argue that Zariah has not provided any

evidence to show that Dollison, Bickel, Benway, or the Board retaliated against her

in violation of the First Amendment. (Id., pp. 30–33). Plaintiff insists in opposition

that Niesha’s informal complaint to Principal Bickel and to Superintendent Benway

provides the requisite protected activity. (Doc. 140, pp. 69–80).

In Springer v. Durflinger, 518 F.3d 479 (7th Cir. 2008), the Seventh Circuit

upheld the district court’s grant of summary judgment on a First Amendment

retaliation claim. The Seventh Circuit noted that:

There is a dispute here in the generic sense—the parties adamantly

dispute the explanations for the various events that occurred after the

January 30 meeting. The parents argue that the events were fueled by

the school's retaliatory motives. The school officials, on the other hand,

say they made policy decisions based on factors wholly distinct from the

Springers’ and Collinses’ complaints. This disagreement centers on the

parents’ speculation about the school’s retaliatory motives.

Id. at 484. The Springer Court stated that “[t]he parents’ argument in opposition to

summary judgment boils down to an allegation that defense witnesses are lying and

the stated reasons for the school’s actions are phony. They argue that there are ‘two

sides to every story, which makes this a perfect credibility case for a jury to decide.’”

While it is inappropriate for the district court to make credibility determinations at

summary judgment, “when challenges to witness’ credibility are all that a plaintiff

relies on, and he has shown no independent facts—no proof—to support his claims,

summary judgment in favor of the defendant is proper.” Id. (citing Dugan v. Smerwick

Sewerage Co., 142 F.3d 398, 406 (7th Cir. 1998)). In Springer, “all the plaintiffs [had]

to go on is a collective hunch about the defendant’s motives, which in itself will not

survive a motion for summary judgment.” Id. (citing Rand v. CF Indus., Inc., 42 F.3d

1139, 1146 (7th Cir. 1994).

Plaintiff insists that “[i]n the summary judgment context . . . to rebut the

defendants’ proffered explanations for their terminations, plaintiffs must produce

evidence upon which a rational finder of fact could infer that these explanations were

lies.” (Doc. 140, p. 73 (citing Vukadinovich v. Bd. Sch. Trs. N. Newton Sch. Corp., 278

F.3d 693, 699 (7th Cir. 2002)).12 Plaintiff also cites to Taylor v. Ways to argue that

Benway and Bickel, even though they were not the final decisionmakers with respect

to Zariah’s expulsion, can still be held liable under the so-called “cat’s paw” theory of

liability. (Doc. 140, p. 82 (citing 999 F.3d 478, 488 (7th Cir. 2021))). To succeed using

this theory, the plaintiff must prove that subordinate government employees acted

with unlawful motives in order to cause the actual decisionmakers to take adverse

action. See Taylor, 999 F.3d at 488. To that end, Plaintiff argues that Benway and

12 Notably, the plaintiff in Vukadinovich failed to prove that the defendants’ justifications were

pretextual. See 278 F.3d at 699.

Bickel intentionally manipulated the Board to expel Zariah because of racial animus

against her. (Id.).

Both of these theories of liability are belied by the extensive factual record in

their case. Based on the transcripts of the Board disciplinary hearing and on the

deposition testimony of both Niesha and Zariah Anthony, of the OTHS

administrators, and of the Board Members, it is clear that Plaintiff cannot offer

evidence that Zariah’s expulsion was pretextual or that Bickel and Benway “cooked

the books” to ensure that Zariah was expelled in accordance with the “cat’s paw”

theory of liability. As discussed at length supra, the reasons for Zariah’s expulsion

were provided in detail, regardless of whether Plaintiff agrees with those reasons. As

in Vukadinovich, Plaintiff’s arguments rely upon speculation as to the motives of the

school administrators and are not supported by admissible evidence. See 278 F.3d at

699.

Additionally, in the First Amendment retaliation context, the Seventh Circuit

applies “an objective test: whether the alleged conduct by the defendants would likely

deter a person of ordinary firmness from continuing to engage in protected activity.”

Douglas v. Reeves, 964 F.3d 643, 646 (7th Cir. 2020) (quoting Surita v. Hyde, 665 F.3d

860, 878 (7th Cir. 2011)). Critically, it does not matter whether or not the Plaintiff

continued to file grievances as “a contrary rule would stymie every First Amendment

retaliation suit: Only plaintiffs who refuse to be silenced make their way to federal

court.” Id. at 647 (citing Van De Yacht v. City of Wausau, 661 F. Supp. 2d 1026, 1034

(W.D. Wis. 2009)). “Whether retaliatory conduct is sufficiently severe to deter is

generally a question of fact, but when the asserted injury is truly minimal, we can

resolve the issue as a matter of law.” Id. (citing Bart v. Telford, 677 F.2d 622, 625 (7th

Cir. 1982)). Both Niesha and Zariah had the opportunity to testify and present

evidence (including videos of the incident in question) at Zariah’s disciplinary

hearing. (Doc. 127, Ex. 2). As noted supra, Plaintiff has failed to link the incident with

Dollison and its aftermath at the Smiley campus with her expulsion the next school

year.

Therefore, considering the above, Plaintiff cannot defeat the Defendants’

Motion on her First Amendment claims. See Springer v. Durflinger, 518 F.3d 479, 484

(7th Cir. 2008) (quoting Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (citing

Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)). This Court

holds that a reasonable factfinder could not find in Plaintiff’s favor, meaning that the

Defendants’ Motion for Summary Judgment must be granted on Counts 6, 8, 9, and

10.

V. Injunctive Relief (Count 11)

Plaintiff also seeks a permanent injunction “to expunge Zariah’s record,

including removal of the complaint on her ‘Student Discipline Report,’ her

unwarranted and unjustified expulsion, and any other disciplinary mark related to

or arising out of the events described in the Third Amended Complaint.” (Doc. 140,

pp. 82–83).

A preliminary injunction is “an exercise of a very far-reaching power, never to

be indulged in except in a case clearly demanding it.” Finch v. Treto, 82 F.4th 572,

578 (7th Cir. 2023) (quoting Cassell v. Snyders, 990 F.3d 539, 544 (7th Cir. 2021)).

The purpose of a preliminary injunction is “preserve the relative positions of the

parties until a trial on the merits can be held.” Tully v. Okeson, 78 F.4th 377, 381 (7th

Cir. 2023) (quoting Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)). The

issuance of a preliminary injunction should also “minimize the hardship to the parties

pending final judgment.” Faheem-El v. Klincar, 841 F.2d 712, 717 (7th Cir. 1988).

Crucially, “[t]he party seeking a preliminary injunction bears the burden of

showing that it is warranted.” Finch, 82 F.4th at 578 (quoting Speech First, Inc. v.

Killeen, 968 F.3d 628, 637 (7th Cir. 2020)). In the Seventh Circuit, “a district court

engages in an analysis that proceeds in two distinct phases to decide whether such

relief is warranted: a threshold phase and a balancing phase.” Valencia v. City of

Springfield, 883 F.3d 959, 965 (7th Cir. 2018). In order to proceed beyond the

“threshold phase,” the party seeking a preliminary injunction must satisfy three

requirements via a showing that: “(1) it will suffer irreparable harm in the period

before the resolution of its claim; (2) traditional legal remedies are inadequate; and

(3) there is some likelihood of success on the merits of the claim.” HH Indianapolis,

LLC v. Consol. City of Indianapolis & Cnty of Marion, 889 F.3d 432, 437 (7th Cir.

2018); see also Finch at 578 (citing Speech First, 968 F.3d at 637); Winter v. Nat. Res.

Def. Council, Inc., 555 U.S. 7, 20 (2008) (“A plaintiff seeking a preliminary injunction

must establish that he is likely to succeed on the merits, that he is likely to suffer

irreparable harm in the absence of preliminary relief, that the balance of equities tips

in his favor, and that an injunction is in the public interest.”).

Additionally, “[i]f it is plain that the party seeking the preliminary injunction

has no case on the merits, the injunction should be refused regardless of the balance

of harms.” Valencia, 883 F.3d at 966 (quoting Green River Bottling Co. v. Green River

Corp., 997 F.2d 359, 361 (7th Cir. 1993)). “The two most important considerations are

likelihood of success on the merits and irreparable harm.” Nken v. Holder, 556 U.S.

418, 434 (2009). Moreover, regarding the likelihood of success on the merits, “[i]t is

not enough that the chance of success on the merits be ‘better than negligible.’” Id.

(quoting and disapproving Sofinet v. INS, 188 F.3d 703, 707 (7th Cir. 1999)); see also

Ill. Republican Party v. Pritzker, 973 F.3d 760, 763 (7th Cir. 2020) (“[A]n applicant

for preliminary relief bears a significant burden, even though the Court recognizes

that, at such a preliminary stage, the applicant need not show that it definitely will

win the case. A ‘strong’ showing thus does not mean proof by a preponderance—once

again, that would spill too far into the ultimate merits for something designed to

protect both the parties and the process while the case is pending. But it normally

includes a demonstration of how the applicant proposes to prove the key elements of

its case.”).

If the threshold requirements are met, “the court must balance the equities,

weighing the harm to the moving party if the requested injunction is denied against

the harm to the nonmoving party and the public—including third parties—if it is

granted.” Finch at 578 (citing Cassell, 990 F.3d at 545). In the second phase, “the

court weighs the harm of denying an injunction to the movant against the harm of

granting an injunction to the nonmovant.” Grubhub Inc. v. Relish Labs LLC, 80 F.4th

835, 844 (7th Cir. 2023). This is accomplished via “a sliding scale—the greater the

movant’s likelihood of success on the merits, the less the harms need be in its favor.”

Id. (citing Life Spine, Inc. v. Aegis Spine, Inc., 8 F.4th 531, 539 (7th Cir. 2021). The

court must also consider the public interest. Id.

Permanent injunctions are “not available as a matter of course.” Liebhart v.

SPX Corp., 998 F.3d 772, 774 (7th Cir. 2021). Rather, as a “creature of equity, . . . the

district court has discretion to decide whether that relief is warranted, even if it has

found liability.” Id. Relief via a permanent injunction is appropriate if the applicant

proves the following: “(1) that it has suffered an irreparable injury; (2) that remedies

available at law . . . are inadequate . . . ; (3) that, considering the balance of hardships

. . . , a remedy in equity is warranted; and (4) that the public interest would not be

disserved by a permanent injunction.” Id. at 779 (quoting eBay Inc. v. MercExchange,

L.L.C., 547 U.S. 388, 391 (2006)). “The ultimate decision whether to issue such an

injunction lies within the discretion of the district court.” Id. (citing EEOC v.

AutoZone, Inc., 707 F.3d 824, 840 (7th Cir. 2013)). The Seventh Circuit has made it

clear that “an injunction issues ‘only as necessary to protect against otherwise

irremediable harm’” and that they “give great deference to the court’s decision either

to issue or to deny an injunction.” Id. (quoting LAJIM, LLC v. Gen. Elec. Co., 917 F.3d

933. 944 (7th Cir. 2019)) (citing United States v. Bethlehem Steel Corp., 38 F.3d 862,

867 (7th Cir. 1994); Bowes v. Ind. Sec’y of State, 837 F.3d 813, 817 (7th Cir. 2016)).

“A permanent injunction (as opposed to a preliminary injunction or a

temporary restraining order) is not provisional in nature, but rather is a final

judgment.” Plummer v. Am. Inst. of Certified Pub. Accts., 97 F.3d 220, 229 (7th Cir.

1996) (citing Walgreen Co. v. Sara Creek Property Co., 966 F.2d 273, 275 (7th Cir.

1992)). Thus, while the applicant for a preliminary injunction “must establish that he

is likely to succeed on the merits,” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,

20 (2008), “when the plaintiff is seeking a permanent injunction, the first of the four

traditional factors is slightly modified, for the issue is not whether the plaintiff has

demonstrated a reasonable likelihood of success on the merits, but whether he has in

fact succeeded on the merits.” Plummer, 97 F.3d at 229 (citing Amoco v. Village of

Gambell, 480 U.S. 531, 546 n.12 (1987)).

The Defendants argue that, although Zariah claimed that she would suffer

“significant damages to her future education and ability to seek admission to college,”

that she has not supplemented her answer since May 22, 2024 and has not provided

any information describing this harm in detail. (Doc. 126, p. 37 (citing id., ¶ 142)).

They argue that this shows that her injunctive relief claim is moot and that summary

judgment should be granted in their favor. In opposition, Plaintiff argues that she

meets all four prongs, as she has demonstrated success on the merits, there is no

adequate remedy at law to expunge the records in question, that an equitable remedy

is warranted, and that the Defendants will not suffer farm. (Doc. 140, pp. 82–85).

As is the Seventh Circuit’s preference, the Court will consider the likelihood of

success on the merits before considering whether or not the Plaintiff has alleged

irreparable harm. Considering the extensive discussion supra, it is clear that Plaintiff

has not succeeded on the merits of any of her claims, which precludes the application

of a permanent injunction. Plummer v. Am. Inst. of Certified Pub. Accts., 97 F.3d 220,

229–30 (7th Cir. 1996) (quoting Ced’s Inc. v. E.P.A., 745 F.2d 1092, 1100 (7th Cir.

1984); 11A WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D §

2941 (1995)). As she has not met this critical prong, this Court need not consider the

other required factors. Valencia v. City of Springfield, 883 F.3d 959, 965 (7th Cir.

2018) (quoting Green River Bottling Co. v. Green River Corp., 997 F.2d 359, 361 (7th

Cir. 1993)). Accordingly, the Defendants’ Motion for Summary judgment shall be

granted with respect to Count 11, as well.

VI. Writ of Certiorari (Count 12)

Plaintiff also petitions for a writ of certiorari to enable this Court to review the

Board’s decision to expel Zariah for the 2022–23 school year. (See Doc. 154, ¶ 282).

The Defendants argue here that “Zariah’s writ of certiorari claim fails because it was

filed years outside of the six-month statute of limitations.” (Doc. 126, p. 39; see id., p.

38 (citing Alicea v. Snyder, 321 Ill. App. 3d 248, 252 (Ill. App. Ct. 2001))). They argue

that, even if timely filed, that Zariah’s claim is meritless because “the evidence clearly

shows that Zariah violated the Board’s policy by instigating a fight, throwing a punch

at a student who was restrained, punching a teacher, chasing a student into an

occupied classroom, yelling and screaming, and ignoring directives from OTHS

administrators and staff,” which shows that her expulsion was within the Board’s

discretion. (Id., p. 39). They also note that Zariah seeks damages in connection with

her writ of certiorari that are not available for such a claim. (Id., p. 40 (citing Stratten

v. Wenover Cmty. Unit Dist. No. 1, 551 N.E.2d 640, 645–46 (Ill. 1990); Wilborn v.

Jeffreys, 2023 IL App (4th) 210216-U, ¶ 1)). They argue that both the “American Rule”

and the Illinois Local Government and Government Employees Tort Immunity Act,

745 ILL. COMP. STAT. 10/1-11, et seq., show that the ad damnum clause in Count 12

should be stricken. (Id., pp. 40–41).

In opposition, Plaintiff argues that her claim for a writ of certiorari relates

back to the filing of the original Complaint filed on February 23, 2023 (Doc. 1), less

than six months after Zariah’s expulsion on September 12, 2022 (Doc. 127, Ex. 2).

(Doc. 140, pp. 85–86 (citing FED. R. CIV. P. 15(c)(1)(B)). Plaintiff argues that this writ

is appropriate because the written Expulsion Decision violated Illinois School Code

in that the history of Zariah’s past conduct was not included as required by the Code.

(Doc. 140, pp. 86–87); see 105 ILL. COMP. STAT. 5/10-22.6(b-20). Plaintiff insists that

“at no time during the Board’s disciplinary hearing did the Board consider whether

Zariah’s continuing presence in school would either (a) post a threat to the safety of

other students, staff, or members of the school community or (b) substantially disrupt,

impede, or interfere with the operation of the school, as required by Illinois statute.”

(Doc. 140, p. 87).

However, in reviewing the transcript of the Board hearing, this Court notes

that Zariah’s lack of prior disciplinary history and the potential impact of her

continued presence at OTHS were discussed at length. (See, e.g., Doc. 127, Ex. 2 50:7–

13, 50:21, 86:10–87:3). Moreover, Zariah herself stated that “I don’t think it worked

because they want to fight me when I come back to school, but I don’t want to attend

this school anymore because everybody blaming me for it.” (Id., Ex. 2 62:5–13). Thus,

she directly testified during the hearing that fighting would likely continue if she

returned to school. Moreover, as noted supra, Zariah’s expulsion was not solely based

on the physical altercation itself, but rather was for “fighting and gross misconduct,

including flagrant disregard for adult safety directives, noncompliance with adult

intervention, and creating severe and disruption and disorder to the school

environment.” (Doc. 127, Ex. 2 6:14–24, 7:25–8:13). While Plaintiff insists that “no

forms of non-exclusionary discipline were considered and school officials were never

provided “testimony of any other interventions attempted and exhausted or of their

determination that no other appropriate and available interventions were available

for the student,” (Doc. 140, p. 28 (citation modified) (citing SAMF ¶¶ 863–67)), it is

clear from the record that the Board discussed disciplinary options at length.

Therefore, this Court holds that the Board acted in accordance with the Illinois

School Code and with OTHS policy when expelling Zariah for the remainder of the

2022–23 school year. For this reason, summary judgment must be granted on Count

12. As this claim fails, this Court does not reach the question of whether or not

Plaintiff is entitled to damages as well as injunctive relief. (See Doc. 126, pp. 38–41;

Doc. 140, pp. 88–89).

VII. Qualified Immunity with Respect to Counts 7, 8, 9 & 10

“Qualified immunity shields federal and state officials from monetary liability

unless the law they ostensibly violated was clearly established at the time of the

alleged offense.” Taylor v. Schwarzhuber, 132 F.4th 480, 486 (7th Cir. 2025) (citing

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). “Qualified immunity is an affirmative

defense, but once it is raised the burden shifts to the plaintiff to defeat it.” Holleman

v. Zatecky, 951 F.3d 873, 877 (7th Cir. 2020) (citing Sparing v. Vill. of Olympia Fields,

266 F.3d 684, 688 (7th Cir. 2001)). When qualified immunity is raised by a defendant

“at the summary judgment stage, a plaintiff may overcome that assertion by showing

(1) there is a dispute of material fact as to whether the official violated a ‘statutory or

constitutional right,’ and (2) the right was ‘clearly established at the time’ of the

challenged conduct.” Taylor, 132 F.4th at 486 (quoting Gupta v. Melloh, 19 F.4th 990,

1000 (7th Cir. 2021) (internal quotations omitted)). “A clearly established law is one

where ‘existing precedent [has] placed the statutory or constitutional question beyond

debate.’” Id. (quoting al-Kidd, 563 U.S. at 741). “Courts consider whether ‘[t]he

contours of the right [were] sufficiently clear that a reasonable official would

understand that what he is doing violates that right.’” Id. (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). Notably, “It is not enough that the rule is

suggested by then-existing precedent. The precedent must be clear enough that every

reasonable official would interpret it to establish the particular rule the plaintiff

seeks to apply.” Henry v. Hulett, 969 F.3d 769, 785 (7th Cir. 2020) (quoting District of

Columbia v. Wesby, 583 U.S. 48, 63 (2018)). “The right must be established not as a

general proposition but in a particularized manner so its contours are clear to a

reasonable official.” Id. (citing Reichle v. Howards, 566 U.S. 658, 665 (2012)).

The individual Defendants argue that they are entitled to qualified immunity

with respect to Plaintiff’s Equal Protection claim against Dollison (Count 7) and her

First Amendment retaliation claims against Dollison, Bickel, and Benway (Counts 8,

9, 10). (Doc. 126, p. 34). They argue that “[l]ooking at the actions taken by each of the

individual defendants separately and based on the information available to them at

the time and not without the benefit of hindsight, it simply cannot be stated that they

violated Zariah’s constitutional rights” and that “Further, . . . the rights at issue were

not clearly established at the time of the alleged misconduct.” (Id., p. 35). The

Defendants insist that “Section 1983 was not intended to be a vehicle for federal court

correction of errors in the exercise of that discretion which do not rise to the level of

violations of specific constitutional guarantees.” (Id. (citing Tun v. Whitticker, 398

F.3d 899, 903 (7th Cir. 2005))).

In opposition, Plaintiff argues that “at the time the events took place, it was

clearly established that a government official violates the Equal Protection Clause

and the First Amendment when they discriminate and retaliate against a student on

the basis of race or retaliate against a student for their protected speech” and that

“Section 1983 claims for discrimination and retaliation are well-established and have

been litigated for decades at the federal district, circuit, and Supreme Court levels.”

(Doc. 140, p. 80 (citing Anthony v. O’Fallon Township High Sch. Dist. 203 Bd. Of Ed.,

712 F.Supp.3d 1109, 1127 (S.D. Ill. 2024); Tamayo v. Blagojevich, 526 F.3d 1074, 1091

(7th Cir. 2008)). She insists that because there is sufficient evidence to support her

claims that Zariah’s constitutional rights were violated, that the Defendants cannot

employ qualified immunity to shield their actions. (Id., pp. 81–82).

Recall that “[l]ocal governmental liability under § 1983 is limited to violations

caused by (1) an express policy, (2) a widespread practice so well-settled it becomes a

custom, or (3) a person with final policymaking authority for the local governmental

body.” Id. (citing Spiegel v. McClintic, 916 F.3d 611, 617 (7th Cir. 2019)). There must

be a constitutional violation in order for a school board to be liable under Monell. Id.

(citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986); Sallenger v. City of

Springfield, 630 F.3d 499, 505 (7th Cir. 2010)). Additionally, to establish liability in

a § 1983 equal protection claim, the plaintiff “must show that [the defendant] acted

with a nefarious discriminatory purpose and discriminated against her based on her

membership in a definable class.” D.S. v. E. Porter Cnty. Sch. Corp., 799 F.3d 793,

799 (7th Cir. 2015) (citing Nabozny v. Podlesny, 92 F.3d 446, 453 (7th Cir. 1996)).

Additionally, in order “[t]o prevail on a First Amendment retaliation claim, a

plaintiff must establish three elements”: (1) “he must show he engaged in protected

First Amendment activity,” (2) “he must show an adverse action was taken against

him,” and (3) “he must show his protected conduct was at least a motivating factor of

the adverse action.” Holleman v. Zatecky, 951 F.3d 873, 878 (7th Cir. 2020) (citing

Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)).

Clearly, Plaintiff has not established that the individual Defendants have

violated her rights under the Equal Protection Clause or the First Amendment. She

has failed to provide evidence to rebut Defendants’ Motion for Summary Judgment

with respect to the equal protection discrimination claim against Dollison and the

First Amendment retaliation claims against Dollison, Bickel, and Benway. If she had,

however, this Court holds that Dollison would be entitled to qualified immunity as to

the Equal Protection Clause claim against her and that Dollison, Bickel, and Benway

would be entitled to qualified immunity with respect to Plaintiff’s First Amendment

retaliation claim against them. Clearly, the rights to be free from unequal treatment

based on race and from retaliation based on one’s protected speech (including formal

and informal complaint) has been clearly established. That being said, this Court

discussed supra that reasonable administrators would not take Niesha’s profanity-

laden tirades against them as evincing an interest in filing a race-based

discrimination complaint. Additionally, Bickel and Benway’s testimony at Zariah’s

disciplinary hearing does not demonstrate an unconstitutional violation of Zariah’s

(and Niesha’s) First Amendment rights. Therefore, this Court holds that even if

Plaintiff had provided sufficient evidence to rebut the Defendants’ Motion for

Summary Judgment on her constitutional claims, that the individual Defendants

would enjoy qualified immunity with respect to Counts 7, 8, 9, and 10.

VIII. Sanctions

The Defendants also renew their request for sanctions as related to the matter

of Niesha and Zariah Anthony’s residency, arguing that they made “knowing and

intentional false statements to this Court and during their depositions as to their true

residency.” (Doc. 126, p. 49 (citing Doc. 75)).

Federal Rule of Civil Procedure 37(a)(1) permits a party to “move for an order

compelling disclosure or discovery” provided that the motion includes “a certification

that the movant has in good faith conferred or attempted to confer with the person or

party failing to make disclosure or discovery in an effort to obtain it without court

action.” This certification is also required by Local Rule 26.1(c)(2) and the Court’s

Case Management Procedures. Rule 37(b) provides that failure to comply with a

discovery order issued by the court is a sanctionable offense, with potential sanctions

including dismissal of the action in whole or in part, default judgment, or holding a

party in contempt of court. See FED. R. CIV. P. 37(b)(2)(A).

Defendants’ Motion for Sanctions (Doc. 75) was denied without prejudice on

April 1, 2025 after the parties informed this Court that the relevant discovery

disputes had been resolved. (Doc. 107). Moreover, even if the Anthonys did lie about

their residency, it is undisputed that the matter of Zariah’s residency does not obviate

the Defendants’ duty to Zariah as a student. If OTHS wished to adjudicate the matter

of Zariah’s residency, they should have taken the appropriate procedural steps while

Zariah was still a student. This Court holds that sanctions are not appropriate at this

time and that the Defendants’ request for sanctions is denied.

As an aside, this is a particularly tough case and this Court once again

commends the parties for their vigor and for their thoughtful arguments.

CONCLUSION

For the reasons set forth above, the Defendants’ Motion for Summary

Judgment (Doc. 123) is GRANTED. This matter is DISMISSED with prejudice.

The Clerk of Court is DIRECTED to close this case on the Court’s docket.

IT IS SO ORDERED.

DATED: March 31, 2026

s/ Stephen P. McGlynn

STEPHEN P. McGLYNN

U.S. District Judge