Thomas v. Evansville-Vanderburgh School Corp.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 19, 2007*

Decided December 26, 2007

Before

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

No. 07-2083

DEBRA L. THOMAS, Appeal from the United States District

Plaintiff-Appellant, Court for the Southern District of

Indiana, Evansville Division

v.

No. 02 C 24

EVANSVILLE-VANDERBURGH

SCHOOL CORP., et al., Larry J. McKinney,

Defendants-Appellees. Chief Judge.

ORDER

This appeal concerns the measures taken by a public elementary school’s

teachers, counselors, principal, and nurse in response to a student’s claims that her

mother was abusing her. The mother, Debra Thomas, seeks relief under 42 U.S.C.

§ 1983, contending that school officials deprived her of her constitutional rights to

equal protection under the law by falsely reporting that she had abused her

daughter, Marteisha Mosley. Thomas further contends that, in meeting regularly

with Marteisha without Thomas’s knowledge, a school counselor deprived Thomas

*

After an examination of the briefs and the record, we have concluded

that oral argument is unnecessary. The appeal is submitted on the briefs and the

record. See FED. R. APP. P. 34(a)(2).

No. 07-2083 Page 2

of her substantive due process right to direct the upbringing of her child. And she

argues that school officials have since retaliated against her for complaining about

their handling of Marteisha’s situation by rejecting her request to enroll her other

children at the school. The district court granted summary judgment for the school

and its officials, and Thomas appeals. We affirm.

We recite the facts in the light most favorable to Thomas. Between January

1998 and March 2000, Marteisha was enrolled at Lodge Elementary School in

Evansville, Indiana. During that period, members of the school staff—teacher

Debra Kasacavage, nurse Marilyn Wright, principal Pat Loge, and guidance

counselor Thomas Higgs—reported to Child Protective Services (CPS) ten incidents

of Thomas’s suspected abuse of Marteisha. Eight of the reports related that

Marteisha had told a staff member that her mother had slapped her, struck her

with an electrical cord, or whipped her with a switch. CPS confirmed that two of

those reports were substantiated—the reports on March 25 and December 8, 1998,

both of which included observations of bruises and welts on Marteisha’s body. The

CPS deemed unsubstantiated the other six reports of physical abuse. Principal

Loge filed the two remaining reports—one in 1998 and the other in 2000. In the

first, she reported that Marteisha rode a city bus alone to her babysitter; in the

second, she reported that Thomas had called the school and threatened to kill her

daughter. Those reports also were deemed unsubstantiated. But the CPS, which

has a procedure for investigating whether a report is false, did not initiate that

procedure with respect to any of the unsubstantiated reports. At no point did

anyone remove Marteisha from Thomas’s custody, though the CPS did send police

officers to her home in response to Loge’s report that Thomas had threatened to kill

Marteisha.

During this period, teachers, school administrators and other personnel

frequently would call upon Sally Kivett, a special concerns counselor at the school,

to take Marteisha out of class to discuss her difficulties functioning and performing

at school. It is undisputed that Kivett did not inform Thomas of her conversations

with Marteisha until February 29, 2000. On that day Kivett met with Thomas,

Marteisha’s father, principal Loge, and guidance counselor Higgs, to discuss

Marteisha’s academic and behavioral issues. During the conference, Kivett related

to Thomas, who is African-American, that Marteisha had told her that Thomas had

called Marteisha a “bitch” and threatened, “Do bad, and I’ll hit you like a nigger in

the street.” Thomas denies that she ever said those words to Marteisha. Following

the conference, on March 1, 2000, Kivett called CPS to discuss her concerns about

Thomas’s treatment of Marteisha. She did not, however, report that Thomas had

committed child abuse or neglect.

Two years later, Thomas initiated this lawsuit against the school and its

officials. (She also unsuccessfully sued CPS officials in a separate lawsuit. Thomas

No. 07-2083 Page 3

v. Starks, 159 Fed. App’x 716 (7th Cir. 2005) (unpublished order).) In addition to

her claims that school officials had falsely reported child abuse and interfered with

her parental rights by privately meeting with her daughter, Thomas alleged in her

third amended complaint that the school had not allowed her to enroll her younger

children at Lodge in retaliation for her public complaints about the school. After

nearly three years of litigation, the district court granted the school’s motion for

summary judgment.

Thomas, who was represented by appointed attorneys in the district court,

proceeds pro se on appeal. She contends that the district court should have allowed

her to proceed to trial on her equal protection claims, her due process claim, and her

First Amendment retaliation claim. She also asserts that the court committed

various procedural errors. We address each of her contentions in turn.

Thomas first argues that the district court erred in concluding that no

reasonable jury could find that school officials discriminated against her on the

basis of her race, in violation of her right to equal protection under the law. To

survive summary judgment, Thomas had to adduce sufficient evidence from which a

jury could conclude that the school officials’ actions had a discriminatory effect and

were motivated by a discriminatory purpose. See Chavez v. Ill. State Police, 251

F.3d 612, 635-36 (7th Cir. 2001). Thomas had to come forward with some evidence

that she was treated differently than similarly situated parents who were not

African-American, and that the school officials filed the reports at least in part

because of her race. See id. at 636, 645. She did neither. Thomas did not identify a

single similarly situated parent, nor has she identified any credible evidence to

rebut the officials’ affidavit testimony that they had made the reports in good faith.

Indeed, Thomas has not come forward with any evidence that school officials were

motivated by her race. The only evidence that could possibly hint that Thomas’s

race was considered is that Kivett used the word “nigger” in repeating Thomas’s

alleged threat to hurt Marteisha. Although we have said that the use of racial slurs

can be strong evidence of racial animus, DeWalt v. Carter, 224 F.3d 607, 612 n.3

(7th Cir. 2000), Kivett was reporting verbatim what Marteisha had told her. That

indirect use of the slur, standing alone, is simply not enough evidence to support an

inference of discriminatory intent. And, in any event, Kivett never filed a report

with CPS.

Thomas also argues that the district court erred in rejecting her claim that

the school engaged in the widespread practice of discriminating against African-

American parents. To survive summary judgment on that claim, Thomas had to

produce enough evidence from which a jury could conclude that such discrimination

was “so pervasive that acquiescence on the part of policymakers was apparent and

amounted to a policy decision.” See Phelan v. Cook County, 463 F.3d 773, 790 (7th

Cir. 2006). Rather than showing a pervasive practice of discrimination, though,

No. 07-2083 Page 4

Thomas relies entirely on her own experiences—which, as we explained, she has not

shown were discriminatory. And although she avers that she has personal

knowledge of African-American parents experiencing similar treatment by school

officials, she does not identify those persons, nor has she identified any examples of

discriminatory treatment.

Thomas next argues that the district court erred in concluding that school

officials were entitled to qualified immunity on Thomas’s claims that counselor

Kivett’s private discussions with Marteisha violated Thomas’s substantive due

process right to direct the upbringing of her daughter. School officials were entitled

to qualified immunity if the facts, viewed in the light most favorable to Thomas,

show that Kivett’s conduct did not violate a constitutional right. See Scott v.

Harris, 127 S. Ct. 1769, 1774 (2007). If they did show a violation, we would next

ask whether the right was clearly established at the time. Id.

We need not proceed to the second step because Thomas has not shown that

counselor Kivett’s private discussions with Marteisha violated Thomas’s

constitutional rights. We agree that Thomas has a fundamental right, secured by

the due process clause, to direct the upbringing and education of her child. See, e.g.,

Troxel v. Granville, 530 U.S. 57, 65-66 (2000) (collecting cases). That right was

articulated in Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925), where the Supreme

Court declared unconstitutional an Oregon law requiring parents to send their

children to public schools, and in Meyer v. Nebraska, 262 U.S. 390 (1923), where the

Court held that a law restricting the instruction of foreign languages to children

violated parents’ rights to employ a teacher to instruct their child, see id. at 400.

But a right to choose the type of school one’s child attends, or to direct the private

instruction of one’s child, does not imply a parent’s right to control every aspect of

her child’s education at a public school. See Fields v. Palmdale Sch. Dist., 427 F.3d

1197, 1204-07 (9th Cir. 2005); Leebaert v. Harrington, 332 F.3d 134, 140-42 (2d Cir.

2003); Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 533-34 (1st Cir. 1995);

cf. Wisconsin v. Yoder, 406 U.S. 205, 232-33 (1972) (limiting state’s power over

education when it implicates parent’s rights under the Free Exercise Clause).

Kivett’s affidavit testimony shows that her discussions with Marteisha were

academic in nature, focusing only on her problems performing and functioning at

school. And Marteisha’s vague description of the conversations as “personal” in her

affidavit, signed at age 16, does not rebut that testimony. Because Thomas pointed

the court to no authority to support her claimed right to know about these

academically oriented conversations when they occurred, the district court correctly

concluded that the school officials were entitled to qualified immunity.

Thomas also argues that school officials denied her other children enrollment

at Lodge—they were placed in a different elementary school—in retaliation for

Thomas’s exercise of her First Amendment rights. But she has adduced no evidence

No. 07-2083 Page 5

to support the contention. James Trader, the Director of Student Services and

Counseling at the Evansville-Vanderburgh School Corporation, avers that the

decision was made to avoid confrontation between school staff and Thomas. Trader

believed such a step was necessary because he learned that Thomas had said that

she wished Trader would “have a heart attack and die” and that she wished

principal Loge’s breast cancer had killed her. Without evidence that even hints that

the decision was made for constitutionally impermissible reasons, the district court

properly dismissed the claim.

We next turn to Thomas’s disagreements with the district court’s handling of

various procedural matters. Her primary assertion, which she reiterates

extensively in her reply brief, is that the district court sua sponte granted summary

judgment without offering her an opportunity to cure the defects in her complaint.

But the court did not sua sponte grant summary judgment; the school moved for

summary judgment after extensive discovery on both sides, and the court

considered Thomas’s responses to the motion before granting it. Thomas also

argues that the court should have granted oral argument on the summary judgment

motion, but she has not shown that the district court abused its discretion in

denying it. See S.D. IND. R. 7.5(a). Thomas’s other procedural arguments—failing

to set a trial date pending the outcome of the summary judgment motion, allowing

extra pages in the school officials’ submissions, and failing to hold a status

conference after granting summary judgment—are all meritless.

Finally, Thomas appears to have abandoned her state law claims on appeal.

In any event, she has not shown that the district court abused its discretion in

declining to exercise supplemental jurisdiction over the state law claims after

dismissing the federal claims. See 28 U.S.C. § 1367(c)(3); Williams Elecs. Games,

Inc. v. Garrity, 479 F.3d 904, 906 (7th Cir. 2007).

AFFIRMED.