C.S. v. CouchC.S. v. Couch
OPINION AND ORDER
I. INTRODUCTION
This case arises out of a series of allegedly discriminatory school incidents that the Plaintiff, C.S., a minor, believes were perpetuated against him because of his race. Based on these events, C.S., through his next friend and Parents, advanees various federal claims against the Smith-Green Community Schools Corporation (“Smith-Green”) and several of its administrators, individual Defendants Austin Couch, Jerry Lange, and Nicole Singer (collectively, “Defendants”).
II. PROCEDURAL BACKGROUND
In his Complaint, C.S. brought the following federal claims against Defendants: (1) a racially hostile environment claim under Title VT of the Civil Rights Act, 42 U.S.C. § 2000d; (2) a disparate discipline claim under Title VI; (3) an equal protection claim under the Fourteenth Amendment; (4) a due process claim under the Fourteenth Amendment; and (5) a false arrest claim under the Fourth Amendment. (Compl. Counts I-IV.) Defendants filed a Motion for Summary Judgment attacking each of these claims. (See Docket #24, 25.) C.S.’s response, however, addresses only the Title VI racially hostile environment claim (see Pl.’s Resp. 4-6) and
III. FACTUAL BACKGROUND
C.S. is a multi-racial student who attended Smith-Green schools until his expulsion during his freshmen year on April 10, 2009. (Compl. ¶¶ 4, 10-11; see C.S. Dep. 34.) Smith-Green operates Churubusco Middle School and Churubusco High School
During the 2008-2009 academic year, C.S. was a freshman at Churubusco High School. (C.S. Dep. 10, 34; Couch Dep. 9; Darnell Aff. Ex. 2.) Throughout that same time period, Austin Couch was the principal of Churubusco High School (Compl. If 6; see Couch Dep. 5), Jerry Lange was an assistant principal at Churubusco High School (Lange Dep. 12-13), and Nicole Singer was the principal of Churubusco Elementary School (Singer Dep. 13).
C.S. alleges several different incidents of racial harassment dating back to the fall of 2004 and continuing through his expulsion in April 2009. (Compl. ¶¶ 12, 14; Pl.’s Answers to Defs.’ Interrog. No. 5.) The first alleged incident occurred in the fall of 2004, when another student called C.S. “Nigger.” (C.S. Dep. 19; Compl. ¶ 12(a); PL’s Answers to Defs.’ Interrog. No. 5.) While C.S. testified that he did not remember this event (C.S. Dep. 19-20), his mother, T.L., remembered it and stated that she talked to C.S.’s teacher about the incident and that the student’s parents brought him to their home (T.L. Dep. 19-20).
When C.S. was in seventh grade, during the 2006 to 2007 school year, he began to
The following school year (2007 to 2008), when C.S. was in eighth grade, this same student, J.L., threatened to kill C.S. on his birthday after instructing his friends to beat C.S. up in the bathroom.
Some time in 2008, another student called C.S. “Nigger.” (PL’s Answers to Defs.’ Interrog. No. 5.) It is unknown whether this incident was reported or if there was punishment. (PL’s Answers to Defs.’ Interrog. No. 5.) During the 2008-2009 school year, a fight between S.W. and C.S. occurred in Phil Allen’s agricultural classroom.
Shortly after the fight in Alen’s classroom, in January or February 2009, another student told C.S. to “go back to Africa” while in the classroom, then, when C.S. went to the bathroom, the other student turned the lights out and said to C.S., “Now I can’t find you.” (C.S. Dep. 35-36; PL’s Answers to Defs.’ Interrog. No. 5; Compl. ¶ 12(f).) C.S. indicated that he did not report this incident to anyone and that the school did not know about it. (C.S. Dep. 36-37, 61-62.)
On February 10, 2009, C.S. was presented with a “hate” note by a student picturing a Confederate flag underneath of which read, “Niggers beware,” and “Niggers must be hung,” with a stick figure showing an African-American hanging from a tree. (C.S. Dep. 37-38; Lange Dep. 58; PL’s Answers to Defs.’ Interrog. No. 5; Compl. ¶ 12(g).) Lange, an assistant principal, became aware of this incident, and the student responsible for the note was suspended pending expulsion; he was subsequently allowed to return on a waiver of due process. (Lange Dep. 58-59.)
T.L. met with school officials regarding the alleged incidents of racial harassment and violence. (Compl. ¶ 13.) After C.S. was assaulted in the bathroom in April 2007, T.L. met with the middle school principal to institute a diversity program in the Churubusco schools. (Compl. ¶ 13; Davis Dep. 32; T.L. Dep. 53.) While a diversity program was not implemented at that time, it was later, in February of 2009, in the middle school.
Also during the 2008-2009 school year, C.S. was disciplined several times for violating the “Code of Conduct” set forth in the Churubuseo High School Student Handbook, which was given to every student before the start of the year. (Lange Aff. ¶¶ 6-7.) C.S.’s first significant discipline occurred as a result of a series of behavior over several days, from December 4, 2008, to December 8, 2008, culminating in an all day “RS” on December 9, 2008. (Lange Aff. ¶¶ 8-9.) Specifically, on December 4, 2008, C.S. admittedly slapped another student and also made fun of a second student’s family. (Lange Aff. ¶ 9.) On December 5, 2008, C.S. exchanged inappropriate words with a junior high student, threatened to fight the student, and later approached this student at his locker. (Lange Aff. ¶ 10.) Then, on December 8, 2008, C.S. called the same junior high student a “bitch” and later flipped him off in the hallway. (Lange Aff. ¶ 11.)
A little over a week later, on December 18, 2008, C.S. was involved in a fight with another student in the boys’ locker room. (Lange Aff. ¶ 12.) The fight began as horseplay; the other student slapped C.S. in the face with a towel, and C.S. then whipped him with a towel in return, which caused a fight to break out. (C.S. Dep. 55-56.) C.S. stated that no racial words were exchanged. (C.S. Dep. 56.) Both C.S. and the other student accepted part of the blame and were given the same discipline.
On February 17, 2009, C.S. sprayed “Fart Spray” in English class, resulting in the evacuation of the room and cancellation of class. (Darnell Aff. Ex. 1; C.S. Dep. 57.) C.S. admitted that he sprayed this odor and that he violated school policy in doing so. (C.S. Dep. 58.) C.S. was subsequently suspended out of school for three days.- (Darnell Aff. Ex. 1.)
On March 9, 2009, Lange received a complaint from a female student, who accused C.S. of touching her inappropriately on the bus ride home on March 6th. (Darnell Aff. Ex. 1; Lange Dep. 21-22; Lange Aff. Ex. 2.) She claimed that C.S. touched her breast and repeatedly put his fingers and hand down her shirt. (Lange Aff. Ex. 2; Darnell Aff. Ex. 1.) The female student reported telling C.S. to stop multiple times and that she hit his hand away. (Lange Aff. Ex. 2; Darnell Aff. Ex. 1.) She also alleged that C.S. made sexual comments to her and tried to slide his hand over her crotch. (Lange Aff. Ex. 2; Darnell Aff. Ex. 1.) At his deposition, C.S. testified that nothing inappropriate or sexual was said and that the female student had asked C.S. to feel the muscles on her arm, and he had done so. (C.S. Dep. 45.)
After receiving this report of sexual misconduct, Lange and Couch investigated the matter and interviewed C.S. and other students on the bus who were sitting around C.S. on that day, obtaining written statements from C.S. and students who indicated that they saw or heard something. (Lange Dep. 24, 26, 38; Lange Aff. Exs. 1-9.) They also talked to a handful of students who did not write statements because, when asked if they had, seen or
The school’s investigation also revealed that C.S. had touched and made inappropriate comments to the complainant on prior occasions as well and that he also made inappropriate sexual comments to another girl.
On March 10, 2009, C.S. gave his written incident statement in which he denied touching the complainant inappropriately and admitted that he made one inappropriate comment to her on March 6th, which was after another student made a sexual comment to her, and another inappropriate thing on a previous occasion, which he could not remember. (Lange Aff. Ex. 1.) C.S. made this statement while in Lange’s office with only Couch present. (C.S. Dep. 50.) C.S. testified that Couch was “pressuring [him] to write a statement” and told him “to include everything that happened.” (C.S. Dep. 50.)
After obtaining these statements, Lange and Couch presented the students’ statements to Superintendent Bruce Hippensteel and gave him an overview of the information they had gathered at that point. (Lange Dep. 17-18.) Following this consultation, the Superintendent decided that expulsion proceedings should be initiated against C.S. (Lange Dep. 15, 17, 30.)
T.L. was notified of the allegations against C.S. on March 10, 2009.
Superintendent Hippensteel selected Singer, the principal of Churubusco Elementary School, to be the expulsion examiner. (Singer Dep. 35-36.) After receiving notification of her selection, Singer collected the documents that were relevant to the accusation against C.S., asking the school to give her everything that its administrators had used in the scope of their investigation. (Singer Dep. 40.) However, besides asking Lange and Couch for this information, Singer did not recall any other conversations with either Lange or Couch concerning C.S.’s expulsion hearing. (Singer Dep. 44.) The documents she received included the student witness statements and a document from the school recommending expulsion that also detailed C.S.’s other infractions from the school year. (Singer Dep. 44.)
After C.S. was suspended, his parents requested expedited testing to determine if C.S. qualified for special education services. (Lange Dep. 40; T.L. Dep. 131.) As the testing determined that C.S. was eligible for special education services in the areas of math reasoning and math calculation, a manifestation meeting was held on April 9, 2009, within a case conference committee session, to determine if C.S.’s disability played a role in his actions on March 6, 2009. (Darnell Aff. Exs. 2-7; Lange Aff. ¶ 13; Lange Dep. 40.) C.S., his parents, and Lange were among those present at the manifestation meeting. (Darnell Aff. Ex. 7.) It was determined that C.S.’s conduct on March 6th was not caused by and did not have a direct and substantial relationship to his disability and that C.S.’s conduct was not a direct result of the public agency’s failure to implement an individualized education program. (Lange Aff. ¶ 13; Darnell Aff. Exs. 7, 9.) As such, the school’s disciplinary procedures applied to C.S. (Lange Aff. ¶ 14.)
During the case conference on April 9, 2009, C.S. and his parents were offered a “Waiver of Due Process Rights: Probationary Continued Education Agreement,” which would have placed C.S. on a probationary continued education program in lieu of expulsion. (Darnell Aff. Ex. 8; Lange Aff. ¶ 15.) However, neither C.S. nor his parents accepted this offer. (See Darnell Aff. Ex. 8.)
On April 10, 2009, Singer conducted an expulsion hearing in C.S.’s case. (Darnell Aff. Ex. 9.) C.S. was represented by his parents; Churubusco High School was represented by Lange and Couch. (Darnell Aff. Ex. 9.) At the hearing, both C.S. and the school presented exhibits and provided evidence in support of them case. (Darnell Aff. Ex. 9.) T.L. felt as though she were given an opportunity to present all the evidence she wanted at the expulsion hearing. (T.L. Dep. 118.) Singer reviewed all relevant testimony and evidence and excluded some. (Darnell Aff. Ex. 9.) On April 17, 2009, Singer rendered her decision, determining that C.S. violated the Churubusco High School Code of Conduct and that the evidence supported C.S.’s expulsion for one semester. (Darnell Aff. Ex.. 9.)
Accordingly, C.S. was expelled for one semester. (Darnell Aff. Ex. 9.) Smith-Green continued to provide special education services to C.S. on the Home Bound program. (T.L. Dep. 130.) Although C.S. was eligible to return to Smith-Green at the beginning of the 2009-2010 school year (Darnell Af. Ex. 9), C.S. enrolled at Cornerstone Christian School instead (T.L. Dep. 118).
Summary judgment may be granted only if there are no disputed genuine issues of material fact. Payne,
V. DISCUSSION
After winnowing the case down, the Court will now address C.S.’s remaining two claims: (1) a racially hostile environment under Title VI and (2) a violation of C.S.’s Miranda rights under the Fifth Amendment.
A. Title VI Hostile Environment Claim
C.S.’s Title VI claim is premised on the argument that Smith-Green intentionally created and tolerated a hostile racial environment. (Pl.’s Resp. 4.) In describing
1. StudenHom-Student Harassment
Student-on-student harassment can give rise to a federal claim against a public school who receives federal funding under Title VI. Curley ex rel. Curley v. Hill, No. IP97-0570-CH/G,
a. Severe, Pervasive, and Objectively Offensive Harassment
In order to hold a funding recipient liable under Title VI for a racially hostile environment, “a plaintiff must establish [racial] harassment of students that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Davis,
To recover damages, such student-on-student harassment must be so severe, pervasive, and objectively offensive that it denies its victims equal access to education. Id. The harassment must further have a “concrete, negative effect” on the victim’s education, which may include dropping grades, becoming homebound or hospitalized due to harassment, physical violence, or physical exclusion from a school resource. See id. at 650-51,
In the instant case, C.S. asserts that other students perpetrated the following racially motivated discriminatory acts against him while he was a student in Smith-Green schools: (1) when C.S. was a fifth-grader, another student called him a racial epithet; (2) in sixth grade, the same student drew a picture of C.S. getting shot in the head;
This last allegation — that the sexual harassment allegations were fabricated by students who had previously discriminated against C.S. — is nothing more than speculation, and “reliance on speculation is not enough to get the case to a jury.” Overly v. KeyBank Nat’l Ass’n,
While, accepting the remaining allegations as true, such racially hostile comments and racially motivated violence arguably created a severe and objectively offensive racial environment, C.S. fails to make the necessary link between this environment and a denial of educational opportunities and further fails to demonstrate a concrete, negative effect on his education as required by Davis. See Davis,
As regards physical violence, while C.S. makes a few allegations of physical violence, his situation is distinguishable from that of the plaintiff in Vance, where the Sixth Circuit partly relied on acts of physical violence against the plaintiff in finding that the severity and pervasiveness requirement was met in a Title IX case.
Here, C.S.’s most severe allegation of physical violence that school officials definitely knew about and that was not a two-sided fight, like the horseplay incident in ninth grade, occurred when C.S. was in eighth grade and involved him being thrown into a bathroom stall, where he then hit his head on a radiator. Unlike the school in Vance, rather than simply sending C.S. home to complete his studies and choosing not to investigate the allegations, Smith-Green’s officials investigated the incident and punished the perpetrators. Moreover, C.S. never withdrew from Smith-Green schools because of verbal or physical attacks like the plaintiff in Vance. After the bathroom incident in eighth grade, C.S. remained in Smith-Green schools throughout that year and into the next, and there is no evidence that this physical violence denied him equal access to Smith-Green’s educational opportunities.
Although C.S. was ultimately expelled from Churubusco High School, liability under Title VI for student-on-student harassment requires that the plaintiff be denied an educational opportunity by the harasser’s actions, see Gabrielle M.,
b. Deliberate Indifference
Nevertheless, even if the actions by other students were so severe, pervasive, and objectively offensive as to have a concrete, negative effect on C.S.’s access to education, Smith-Green’s response to known incidents of harassment did not amount to deliberate indifference. Under Title VI, “recipients of federal funding may be liable for ‘subjecting]’ then-students to discrimination where the recipient is deliberately indifferent to known acts of student-on-student [racial] harassment and the harasser is under the school’s disciplinary authority.” Davis,
Moreover, courts are to refrain from second-guessing school administrators’ disciplinary decisions, and school administrators are to continue to have the flexibility they require in such decisions. Davis,
When, after each reported or observed instance of harassment, the school disciplined the perpetrator or took steps to prevent future inappropriate conduct, the school’s response has been found not to be “clearly unreasonable.” Gabrielle M.,
On the other hand, courts have found the issue of deliberate indifference to preclude dismissal or a grant of summary judgment when the school made no effort whatsoever to either investigate harassment, stop it, or discipline the offending student. See Davis,
Furthermore, because Smith-Green can only be held liable under Title VI for acts of student-on-student harassment about which it has actual knowledge, Gabrielle M.,
Therefore, based on the record as it stands now, of the six incidents allegedly motivated by race and of which school officials were definitely aware, the school took disciplinary action against the perpetrators in four. Instead of turning a blind eye to the harassment and doing nothing, the school officials investigated the matter and disciplined the students responsible, seemingly suspending each one and suspending (pending expulsion) the student responsible for the hate note. Accordingly, as regards to these incidents, the school investigated the matter and disciplined the perpetrator, making the school’s response not clearly unreasonable. See Gabrielle M.,
At the same time, even though they were not required to do so, Smith-Green did institute diversity training for students in the middle school in February of 2009.
As for the incidents in fifth grade and on the football field, while C.S.’s teacher and two football coaches were notified about the respective incidents, there is no indication in the record that Smith-Green or anyone else at the school was ever so informed.
Furthermore, the Davis analysis requires that “a school official who possessed the requisite control over the situation had actual knowledge of, and was deliberately indifferent to, the alleged harassment.” Murrell,
Additionally, focusing on the alleged perpetrators rather than each specific incident further supports the conclusion that the response of Smith-Green and its administrators to the alleged discriminatory acts was not clearly unreasonable. For instance, J.L. allegedly perpetrated at least three acts of racial discrimination against C.S.: (1) making racial comments on the football field; (2) threatening to kill C.S. on his birthday; and (3) instructing his friends to beat C.S. up in the bathroom. While it does not appear that Defendants had notice of the racial comments on the football field, once Smith-Green and its administrators were informed that J.L. made a death threat against C.S., they acted promptly and reasonably by suspending the student. See Rost,
Moreover, in analyzing this record, the Court notes that it is well-established that a party will be successful in opposing summary judgment only when it presents definite, competent evidence to rebut the motion. E.g., Smith v. Severn,
2. Allegedly Discriminatory Acts by
C.S. also contends that the individual Defendants’ investigation into the sexual harassment allegations and their decision to expel him was “evidence of a hostile racial environment at Smith-Green.” (Pl.’s Resp. 8.) To establish the elements of a prima facie case under Title VI, “a complaining party must demonstrate that [his] race, color, or national origin was the motive for the discriminatory conduct.” Thompson v. Bd. of the Special Sch. Dist. No. 1,
In a Title VI action, a plaintiffs speculative and unsupported contentions that an administrator’s decision was motivated by discrimination is insufficient to survive summary judgment. See Thompson,
In DT, the plaintiffs argued that the defendants’ decision to suspend the plaintiff following a hearing regarding a locker room theft constituted deliberate indifference and offered expert testimony that the acts of racial hostility against the plaintiff lead to his theft. Id. The court, however, found this argument unpersuasive and focused on the fact that the record indicated that the defendants carefully considered the relevant evidence in reaching their decision to suspend the plaintiff and concluded that “their resolution of the matter was not the result of deliberate indifference.” Id. The court further noted that the plaintiffs appealed the suspension and it was affirmed twice, with the conclusions that the plaintiffs suspension was nonetheless warranted based on the school’s code of conduct and that the defendants did not fail to consider relevant mitigating evidence in deciding to suspend the plaintiff. Id.
Furthermore, Singer, who was not involved in the investigation in any way, was the one who ultimately made the decision to expel C.S., citing the specific codes of conduct that C.S. violated (see Darnell Aff. Ex. 9) and after a hearing in which T.L. felt as though she were given an opportunity to present all the evidence she wanted (T.L. Dep. 118). Accordingly, the record indicates that the Defendants carefully considered the relevant evidence in reaching their decision to expel C.S. and that their investigation and subsequent decision to expel C.S. was not clearly unreasonable. Rather, the decision was warranted by C.S.’s violations of the Churubusco High School Code of Conduct and, thus, did not constitute deliberate indifference. DT,
Once again, summary judgment is the “put up or shut up” moment of a lawsuit, Steen,
B. Fifth Amendment Miranda Violation
Besides his Title VI claim, C.S. also alleges that Defendants violated his Mi
First, Lange and Couch’s questioning of C.S. did not implicate the safeguards of Miranda. Under Miranda v. Arizona,
The question is whether, under the totality of the circumstances, a reasonable person would have felt at liberty to end the interrogation and leave. United States v. Littledale,
Although a child’s age factors into the custody analysis, custody and interrogation do not exist without the presence of law enforcement officers. See Miranda,
Accordingly, in the school context, courts have drawn distinctions between a student being questioned by only a school official at school and a student being questioned by a law enforcement officer at school. Compare S.E. v. Grant Cnty. Bd. of Educ.,
Similarly, while no case from either court has directly addressed the situation in which a school official, rather than a police officer, does the questioning, Indiana courts have held that a student being questioned by school officials, rather than law enforcement officers, at school is not entitled to Miranda warnings prior to questioning. G.J. v. State,
Miranda was concerned with the “intimate connection between the privilege against self-incrimination and police custodial questioning” and the “inherently compelling pressures” in custodial police interrogation.
Here, C.S. was questioned by Couch and Lange at school. Unlike Husband,
Nonetheless, even if C.S. were entitled to Miranda warnings prior to questioning by the school officials, C.S.’s claim would still fail because his statements were never used against him in a criminal proceeding. In Chavez v. Martinez,
Drawing on Somberger, the Seventh Circuit has also held that the use of unwarned statements at a suppression hearing constituted use in a “criminal case,” Best v. City of Portland,
In the instant case, C.S.’s statements were never used against him in a criminal case. He was never arrested, and after a preliminary inquiry by Whitley County Juvenile Probation Department, all charges against C.S. were dismissed. (Pl.’s Answer to Defs.’ Interrog. No. 5.) C.S.’s unwarned statements were never used against him in the courtroom at any proceeding as they were against the Somberger and Best plaintiffs. The statements were never even used to arrest him, which would have been insufficient to provide the basis for civil liability in any event. Hanson,
VI. CONCLUSION
For the reasons set forth above, the Court GRANTS the Defendants’ Motion for Summary Judgment (Docket # 24) and DIRECTS the Clerk to enter judgment in favor of Defendants and against Plaintiff C.S.
SO ORDERED.
Notes
. Accordingly, subject matter jurisdiction arises under 28 U.S.C. § 1331. Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting. (See Docket #15.)
. Besides their Motion for Summary Judgment, Defendants also filed a Motion to Strike on November 18, 2011 (Docket #33), asking the Court to strike evidence designated and cited in support of C.S.’s Response to Defendants’ Motion for Summary Judgment but not submitted to the Court. C.S. filed a response on November 29, 2011, in which he submitted the previously omitted evidence (Docket # 37); Defendants replied on December 7, 2011, asking the Court again to strike this evidence and to deem the Defendants’ proposed findings of fact admitted and uncontested (Docket # 38). However, even when considering the evidence that Defendants seek to strike, C.S.’s claims still fail as a matter of law and summary judgment is therefore appropriate. As such, the Court will consider the evidence that C.S. originally omitted and deem the Defendants' Motion to Strike (Docket # 33) MOOT.
. For summary judgment purposes, the facts are recited in the light most favorable to C.S., the nonmoving party. Payne v. Pauley,
. In the 2010-2011 school year, Churubusco Middle School and High School converted from separate schools into Churubusco Junior-Senior High School. (Davis Dep. 19.)
. T.L. testified that this student continued to say things to C.S., but she also stated that she did not know if C.S. was reporting these subsequent incidents to his teacher. (T.L. Dep. 21-22.) T.L. further testified about an incident in fifth grade in which two girls made up a “racially insulting story about C.S.” (T.L. Dep. 32.) T.L.'s reason for believing there was a racial motive behind this incident was her belief that one of the girls and her family had a "problem with diversity.”. (T.L. Dep. 32-34.) While C.S.'s answer to the Defendants’ fifth interrogatory indicates that C.S.’s fifth grade teacher informed T.L. that she would talk to the principal about these incidents (Pl.’s Answers to Defs.’ Interrog. No. 5), T.L. testified that she did not recall if the first incident — C.S. being called a racial epithet — • was ever “reported up the ladder" at Smith-Green (T.L. Dep. 19-20).
. C.S. stated that he reported these comments to the head coach (C.S. Dep. 24); T.L. testified that she informed one of the assistant coaches (T.L. Dep. 45). T.L. did not know if this incident was reported to the school. (T.L. Dep. 46.)
. The Complaint alleges that the bathroom incident occurred after J.L. threatened to kill C.S. on his birthday. (Compl. ¶ 12(c).) C.S. testified, however, that he thought the bathroom incident took place before his birthday. (C.S. Dep. 28.)
. The record is ambiguous as to when and where the incident in Phil Allen’s classroom actually occurred. In C.S.’s deposition, he indicates that the fight in Allen's classroom occurred on May 15, 2007. (C.S. Dep. 32.) However, in Allen’s deposition, he testified that the incident in his classroom took place during "that school year," seemingly referencing the 2008-2009 school year. (See Allen Dep. 22.) While C.S. alleged in his Complaint and the answer to the Defendants’ fifth interrogatory that this incident involved him being called a racial epithet, punched in the face, and being thrown into a filing cabinet, Allen was not aware of an event where C.S. was thrown into a filing cabinet (Allen Dep. 23), and Lange was not aware of such an incident either (Lange Dep. 62). Adding to the lack of clarity, Defendants treat the alleged filing cabinet incident and the fight in Allen's classroom as two different events. (See Defs.' Mem. in Supp. of Summ. J. 12.) Nonetheless, C.S.'s answer to the Defendants’ fifth interrogatory makes the record slightly clearer. This answer states that the other student calling C.S. a racial epithet, punching him, and throwing him into the filing cabinet happened in early 2009 and that Phil Allen was one individual having information concerning this event. Moreover, T.L. testified that the fight in which C.S. was thrown into a filing cabinet in Allen's classroom happened in C.S.’s freshman year (2008 to 2009), which was "the first year Mr. Allen was there.” (T.L. Dep. 62.) Therefore, based on this record, it appears that a fight took place in Allen’s classroom some time during the 2008-2009 school year, before C.S.’s expulsion, rather than in 2007, and that these events— the alleged filing cabinet incident and the fight in Allen’s classroom — were the same oc
. Lange testified that he was not aware of any diversity or hate training in the high school. (Lange Dep. 66.) According to Couch, all of the training was for students, rather than for teachers and staff. (Couch Dep. 17.)
. According to T.L., during this meeting, Couch admitted there was a diversity problem. (T.L. Dep. 89.) Couch, however, testified that he told C.S.'s parents that the culture was definitely different at Churubusco than South Side High School, in Fort Wayne, Indiana, where Couch had come from, and that "sometimes these students are not as
. It is unclear whether C.S. and the other student received three days of out-of-school suspension (see C.S. Dep. 57; T.L. Dep. 88-89) or just one-and-a-half days of out-of-school suspension (see Lange Aff. ¶ 12; Darnell Aff. Ex. 1). Regardless, there is no dispute that C.S. and the other student received the same punishment for this incident. (C.S. Dep. 57; Lange Aff. ¶ 12.)
. According to C.S., the female students and the witnesses were members of a group that had repeatedly racially discriminated against him, and, as such, C.S. believes that they fabricated this sexual harassment incident. (Pl.’s Answer to Defs.’ Interrog. No. 5; Compl. ¶ 14.) C.S. stated that some of the kids involved had called him the "N" word before, but that the first complainant had never done so. (C.S. Dep. 52.) C.S. further alleges that Couch and Lange ignored the gross inconsistencies of the statements given and ignored the statements of a witness who was sitting three feet away and heard and saw nothing. (Pl.’s Answer to Defs.’ Interrog. No. 5.)
. T.L. testified that Lange first informed her of the allegations on the Tuesday following the incident. (T.L. Dep. 92-93.) While T.L. indicates that this was the 8th or 9th of March (T.L. Dep. 92-93), Tuesday would have fallen on March 10, 2009.
. In the Complaint, C.S. brings' Title VI claims against the individual Defendants in their official and individual capacities. (See Compl. 11116-8.) Defendants argue that a Title VI action cannot be maintained against an individual and, therefore, that summary judgment in favor of the individual Defendants is appropriate on the Title VI claim. (Defs.' Mem. in Supp. of Summ. J. 9-10.) Because C.S. does not respond to this argument, it is deemed abandoned. Palmer,
Nevertheless, the Court briefly notes that Title IX of the Civil Rights Act is modeled after Title VI such that the two statutes operate in the same manner, Gebser v. Lago Vista Indep. Sch. Dist.,
. C.S.'s allegations of racial harassment date back to the fall of 2004. Defendants argue (without any mention of possible tolling due to C.S.’s minority) that any incident which occurred prior to July 19, 2008, may not be the basis of any claim under Title VI because they are barred by the two-year statute of limitations applicable to personal injury actions in Indiana. (Defs.' Mem. in Supp. of Summ. J. 12 n. 1.) In the Seventh Circuit, however, the statute of limitations for Title VI claims is somewhat unclear. Compare Beard v. Robinson,
Nonetheless, despite this uncertainty, the Court does not have to decide this question today. Even considering all of C.S.’s allegations dating back to the fall of 2004, C.S.’s Title VI claim fails as a matter of law. Moreover, if the Court followed the other circuits and did not consider those incidents occurring before July 19, 2008, C.S.’s claim is even weaker and, thus, would still fail. No matter what statute of limitations is applied, it does not change the outcome of this case; Smith-Green is entitled to summary judgment on C.S.'s Title VI claim.
. In his Response, C.S. argues that the "whole expulsion process was racially motivated,” that C.S.’s expulsion was "the only case in school history where police authorities found that there was no cause to prefer charges, but the school corporation proceeded with the expulsion regardless,” that "C.S. was the first student expelled from Churubusco High School for sexual harassment in the ten years prior to his expulsion,’-’ and that the "school intentionally failed to obtain exculpatory statements” and "did not determine whether C.S.’s activities on the bus were a manifestation of his attention deficit-hyperactivity disorder.” (Pl.’s Resp. 8.) While these allegations could be relevant to a disparate discipline claim, C.S. argues that "this again is evidence of a hostile racial environment at Smith-Green” and makes no argument in his Response that these actions amount to disparate discipline. (Pl.’s Resp. 8.) As such, the Court, once again, deems C.S.’s disparate discipline claim to be abandoned and does not address it.
. While C.S. did not see this picture and did not know if there was any racial dimension to it, a reasonable jury could conclude that it was racially motivated as it was drawn by the same student who had called C.S. a racial epithet the year before.
. Similarly, T.L.'s belief that the 2005 incident in which two girls alleged that C.S. made inappropriate comments to them was motivated by race is also based on speculation and, thus, does not warrant reliance.
. While T.L. stated that C.S. started struggling with his school work in the fourth grade, particularly with his math (T.L. Dep. 12-14), she then testified that she did not recall any correlation between the alleged racial harassment incidents in fifth grade and C. S’s grades or behavior in school (T.L. Dep. 25).
. While C.S. alleges that the sexual harassment allegations that lead to his expulsion were fabricated by a group of students out of racially discriminatory motives, this is, once again, pure speculation; there is no evidence in the record supporting this assertion.
. These seven events are the following: (1) the incident in fifth grade was reported to C.S.’s teacher, but T.L. did not recall if this incident was ever reported up the ladder at Smith-Green (T.L. Dep. 19-21); (2) the picture of C.S. getting shot in sixth grade was reported to the middle school principal (C.S. Dep. 21-22); (3) the racial comments on the football field were reported to two football coaches (C.S. Dep. 24; T.L. Dep. 45); (4) the threat to kill C.S. on his birthday was reported to the middle school principal (C.S. Dep. 21); (5) the bathroom incident was reported to the school nurse and the middle school principal (C.S. Dep. 29-30); (6) Allen, the agriculture teacher, was aware of the fight between S.W. and C.S. in his classroom; and (7) Lange, the assistant principal, was aware of the hate note given to C.S. in February 2009 (Lange Dep. 58-59). The eighth incident that was possibly reported was the May 15, 2007, incident in which S.W. allegedly punched C.S. in the face and called him a racial epithet. The answer to the Defendants’ fifth interrogatory indicates that the school nurse and “unknown representatives of the school” had knowledge of this incident (PL's Answers to Defs.' Interrog. No. 5), but the record is otherwise unclear about who was informed of this incident and how exactly Smith-Green and its administrators responded.
. The Court notes that C.S. was given this same option after he was accused of sexual harassment, but C.S. and his parents did not accept it. (See Darnell Aff. Ex. 8.)
. Although C.S.’s answer to the Defendants’ fifth interrogatory states that the fifth grade teacher told T.L. that she would talk to the principal, T.L. did not recall whether the fifth grade incident was ever reported up the ladder at Smith-Green and there is no evidence in the record that the principal was ever actually made aware of it.
. Although the Court previously noted, at note 14 supra, that the Title VI claims against the individual Defendants fail as a matter of law, the Court will proceed to the merits so as to complete the record.
. The Court notes that nowhere in C.S.’s Complaint does he make a Fifth Amendment
. This is in line with federal decisions addressing the question, S.E.,
. Even if Miranda did apply to C.S.’s situation, and to the extent that they were acting as "government officials” (and not as private citizens), the Defendants would be entitled to qualified immunity as C.S.’s right to Miranda warnings when being questioned at school by school officials was not so clear that reasonable officials would have known that failure to give Miranda warnings would violate C.S.’s Fifth Amendment rights. See Husband,
. Defendants also argue that they are entitled to immunity pursuant to the Eleventh Amendment. (Defs.' Mem. in Supp., of Summ. J. 22-24.) As the Court is granting summary judgment to Defendants on all of C.S.'s claims, there is no need to address this argument.