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Higgins v. Saavedra

United States District Court, D. New Mexico

January 23, 2018

RACHEL HIGGINS, as Guardian Ad Litem for B.P., a minor child, Plaintiff,
BRITTNY SAAVEDRA, in her personal capacity acting under color of state law; DEBORAH GARTMAN, in her personal capacity acting under color of state law; MARK A. GARCIA, in his personal capacity acting under color of state law; SHONN SCHROER, in his personal capacity acting under color of state law; CYNTHIA SOO HOO, in her personal capacity acting under color of state law; and ALBUQUERQUE PUBLIC SCHOOL DISTRICT, Defendants.



         This matter is before the Court on Defendants' Motion for Partial Summary Judgment on Plaintiff's Equal Protection Claim for Failure to State a Claim and on the Basis of Qualified Immunity, filed on April 11, 2017 (Doc. 41), and Plaintiff's Opposed Motion for Page Limit Extension for Plaintiff's Exhibits to Plaintiff's Supplemental Response to Defendants' Partial Motion for Summary Judgment on Plaintiff's Equal Protection Claim (Doc. 88), filed on November 1, 2017 (Doc. 93). Jurisdiction arises under 28 U.S.C. § 1331. Having considered the submissions of counsel and relevant law, the Court will GRANT both motions.

         I. Factual Background[1]

         B.P., a minor child and former student at West Mesa High School (WMHS), was a member of the WMHS Varsity Cheerleading Squad. (Am. Compl. ¶¶ 2, 13.) WMHS “is a public high school within the [Albuquerque Public School (APS)] District.” (Id. ¶ 4.) On July 25, 2015, while on a trip to Phoenix, Arizona for a cheerleading camp, two of B.P.'s teammates took photographs and video of B.P. while she was in the shower. (Id. ¶¶ 14, 22, 47(a); see also Doc. 88-1 ¶ 2.) The two girls then shared the video with other teammates and posted it on Snapchat, a social media app. (Am. Compl. ¶¶ 24-25.) Over the next several months, B.P.'s teammates harassed her and made her feel unsafe at school. (Id. ¶¶ 54, 58(c); see also Docs. 88-1 ¶¶ 3-4; 88-4.) Both B.P.'s friend (“Gabby”), [2] and B.P.'s brother also experienced harassment at WMHS after the incident in Phoenix. (See Am. Compl. ¶¶ 71-72; Docs. 88-1 ¶ 7; 49-2 ¶¶ 2, 6.) The teens experienced harassment to such an extent that all three sought to transfer away from WMHS. (Docs. 49-2 ¶ 7; 88-1 ¶ 8.)

         APS's Transfer Policy

         APS students normally attend schools within certain attendance boundaries, which are determined by where the students live, but students “may apply for a transfer to attend a school outside of their assigned school area.” (Doc. 88-8 at 1.) APS maintains an “Enrollment Priority Process” for students who request to transfer to a school outside their attendance boundaries. (See id.) Approvals for transfer requests depend on certain factors, first and foremost whether the requested transfer school has the capacity to accept another student (“site capacity”). (Id.) If the school has site capacity, then APS grants transfers “using a random lottery selection process and priority system in compliance with state and federal requirements. Transfers [are not] first come, first served.” (Id.) The Enrollment Priority Process (often referred to in the parties' briefs and exhibits as the “Transfer Directive” or “Transfer Policy”) “identifies a hierarchy of five different enrollment priorities for APS students submitting transfer requests.”[3] (Doc. 88 ¶ J; see also Doc. 88-8.)

         Ms. Shelly Green, Executive Director of Student Services Center (the “Transfer Office”), which handles student transfers, testified about how the Transfer Office considers students with transfer requests. (See Docs. 88 ¶ U; 88-10.) All student transfer requests are automatically sorted by a computer program into a waiting list according to the priority levels described above. (Doc. 88-10 at 31:7-24, 32:11-15.) When a spot opens at a school with a waiting list of students, an employee from the Transfer Office looks at the waiting list and selects the student with the highest priority as determined by the computer program. (See Id. at 31:2-34:3.) The waiting list includes both general education students (students who do not receive special education services) and students who receive “C or D level” special education services.[4] (Id. at 27:11-20, 32:15-18; 36:21-24.) The waiting list specifically identifies any students who receive “C or D level” special education services. (Id. at 27:11-20, 32:15-18.) If the highest priority student on the waiting list is identified as receiving “C or D level” special education services, the Transfer Office employee then passes the transfer request to the special education department to determine whether there is program availability at the requested school. (Id. at 22:1-23:4; 27:16- 21.) If there is availability in the special education program, then the Transfer Office will approve the transfer request. (Id. at 22:1-23:1; 27:11-21.) The Enrollment Priority Process has three listed “exceptions”-situations in which the superintendent or a designee may “exempt a student from the transfer process.” (Doc. 88-8 at 2-3.) The exceptions include: (1) “when the enrollment/transfer enhances the child's welfare;” (2) “when the enrollment/transfer is in the best interest of the district; or” (3) “when the enrollment is sponsored by a member of the superintendent's leadership team and approved by the superintendent.”[5] (Id.)

         Ms. Green testified that where a student is being bullied and wants to transfer to a school that does not have site capacity, an associate superintendent has authority to force the transfer through.[6] (Id. at 42:5-11.) If an associate superintendent attempts to force a transfer through for a student receiving C or D level special education services, however, the receiving school will still need to have capacity for the student in its special education program. (Id. at 43:11-21.)

         B.P.'s Transfer Troubles

         On October 7, 2015, B.P.'s mother electronically submitted a transfer request for both B.P. and B.P.'s brother, requesting that they be transferred from WMHS to Albuquerque High School (AHS) due to safety concerns. (Doc. 88-1 ¶¶ 8, 11; Am. Compl. ¶ 85; see also Docs. 88-1-C; 88-6.) “B.P.'s and her brother's transfer requests were both Enrollment Priority 4(b)(1) because they requested transfers as siblings and for student safety reasons.”[7] (Docs. 88 ¶ J; 88-6; 88-10 at 28:8-29:12.) B.P.'s mother “called the Transfer Office for the school district that same day . . . to confirm that [her] transfer requests had been received. [She] was told that [APS] was not approving any transfers until the holidays were over unless the school principal agreed that student safety was a concern.” (Doc. 88-1 ¶ 9.)

         In January 2016, after the winter holidays, B.P.'s mother called the Transfer Office again “to inquire about the status of [her] transfer requests . . . .” (Id. ¶ 11.) She states that the woman from the Transfer Office told her that her “son's transfer had been approved, but that B.P.'s transfer was not approved. . . . [T]here was no reason listed explaining why B.P. was not being allowed to transfer[, ]” and “she could see spots for [tenth] graders at AHS, which is the grade B.P. was in.” (Id.) The woman recommended that B.P.'s mother “contact the principal of [AHS] because the principal of a given school could open up space if space was not otherwise available.” (Id.)

         On January 5, 2016, B.P.'s parents went to AHS to meet with the school's principal- Tim McCorkle (Principal McCorkle). (Id. ¶ 12.) They explained that because B.P. has a dyslexia diagnosis, she had an Individualized Education Program (IEP) and required minor accommodations including “extra time on tests and no penalties for spelling errors.” (Id.; Docs. 41-A ¶ 4; 88-10 at 60:13-19.) In fact, B.P. received C level special education services at WMHS. (Docs. 41-B at 1 (B.P.'s “IEP amounts to C-level support”); 88-10 at 61:22-62:3 (B.P. “would have been on the waiting list as a C level student”).) B.P.'s brother, however, was a general education student. (Docs. 41-A ¶ 4; 88-10 at 60:13-19.)

         Principal McCorkle told B.P.'s parents that “he was fine with B.P. coming to [AHS] because her special education accommodations were so minimal.” (Doc. 88-1 ¶ 12.) He also asked them how they “felt about moving B.P. to regular education classes so she could transfer to [AHS] because special education was full.”[8] (Id.; see also Doc. 88-5 at 2 (typed copy of Principal Mark Garcia's handwritten notes stating that Principal McCorkle called Assistant Principal Dooley and “communicated that [B.P.'s] parents wanted to take her out of special-Ed [sic] because AHS could not accommodate her needs as a special Education student”).) Principal McCorkle then called Rae Lynn Dooley, an Assistant Principal of Special Education at WMHS (Assistant Principal Dooley). (Doc. 88-1 ¶ 13.) Principal McCorkle asked Assistant Principal Dooley to begin paperwork to remove B.P. from the special education program so she could transfer as a general education student to AHS. (Id.)

         Later that day, B.P.'s parents went to WMHS to meet with Defendant Mark Garcia (Principal Garcia) and Assistant Principal Dooley. (Id. ¶ 14.) In that meeting, Principal Garcia and Assistant Principal Dooley told B.P.'s parents “that it was not in B.P.'s best interest to transfer schools because [WMHS] offered her help with her dyslexia and the new school would not.” (Id.) B.P.'s mother explained that the environment at WMHS was not safe for B.P., and that B.P.'s brother's transfer to AHS had already been approved. (Id.) Against B.P.'s parents' wishes, Principal Garcia and Assistant Principal Dooley refused to approve the withdrawal at that time. (Id.; see also Doc. 88-5 at 2.)

         On January 6, 2016, B.P.'s mother went to AHS to enroll her son. (Id. ¶ 15.) She explained to Principal McCorkle what had happened when she tried to withdraw B.P. from the special education program, and he said that he would sign B.P.'s transfer request “with full special education accommodations.”[9] (Id. ¶ 16.) Later on January 6, 2016, Ms. Cynthia Soo Hoo, the Executive Director of Compliance for the APS Special Education Department (“ED Soo Hoo”), called B.P.'s mother. (Id. ¶ 18; Am. Compl. ¶ 9.) ED Soo Hoo told B.P.'s mother “that APS would only allow [B.P.'s] transfer and provide her with the appropriate special education services at the new school on the condition that [they] drop [their] legal claims against APS.”[10](Doc. 88-1 ¶ 18.) ED Soo Hoo also told B.P.'s mother that B.P. would not be allowed to start school at AHS “unless [they] signed a settlement agreement promising not to sue APS.” (Id.) ED Soo Hoo left a similar voicemail message for B.P.'s father, stating additionally that the transfer approval was in error “because there [were] several students on the waiting list for” AHS. (Doc. 88-19; see also Doc. 88-1 ¶ 18.) ED Soo Hoo emailed a copy of the proposed settlement agreement to B.P.'s mother on January 7, 2016. (Doc. 88-1 ¶ 21[11]; see also Doc. 88-1-B.)

         On January 8, 2016, B.P.'s attorney filed a Temporary Restraining Order on B.P.'s behalf.[12] (Doc. 88-1 ¶ 27; Am. Compl. ¶ 116; see also Doc. 88-23.) On Monday, January 11, 2016, APS officials allowed B.P. to enroll at AHS without signing the settlement agreement. (Doc. 88-1 ¶ 28.)

         B.P.'s friend, Gabby, “requested a transfer out of [WMHS] in April 2016” due to “bullying and harassment.” (Doc. 49-2 ¶ 7.) Gabby's mother had no issue withdrawing Gabby from WMHS, and she did not have to sign a settlement agreement in order to withdraw Gabby. (Id. ¶¶ 8-9.)

         II. Summary Judgment Standard of Review

         Summary judgment is appropriate when the Court, viewing the record in the light most favorable to the nonmoving party, determines “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). A fact is “material” if it could influence the determination of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is “genuine” if a reasonable trier of fact could return a verdict for either party. Id. The moving party bears the initial responsibility of “show[ing] that there is an absence of evidence to support the nonmoving party's case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

         Once the moving party meets this burden, Rule 56(e) “requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)) (quotation marks omitted). The party opposing a motion for summary judgment “must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990) (citing Celotex, 477 U.S. at 324). Rule 56(c) provides that “[a] party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials . . . .” Fed.R.Civ.P. 56(c)(1)(A). The respondent may not simply “rest on mere allegations or denials of [her] pleadings.” Anderson, 477 U.S. at 259; see also Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980) (“However, once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.”) (quotation omitted)). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat'l Ins. Co. v. Omer, No. 07-2123-JAR, 2008 WL 2309005, at *1 (D. Kan. June 2, 2008) (citing Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)). “In a response to a motion for summary judgment, a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988) (citations omitted).

         III. Analysis: The Court will grant summary judgment to Defendants on Plaintiff's equal protection claim.

         Defendants argue that Plaintiff is unable to “establish that B.P. was treated differently than others ‘similarly situated in every material respect.'” (Doc. 41 at 16.) The crucial distinction rests upon the fact that B.P., who had an Individual Education Program (IEP) that required her to receive certain accommodations in school, was in APS's special education program. (See Id. at 16-17; Docs. 41-A ¶ 4; 88-1 ¶ 12; 88-10 at 60:13-19.) There is no evidence that either B.P.'s brother or B.P.'s friend, Gabby, had IEPs or were in APS's special education program. (Docs. 41-A ¶ 4; 49-2; 88-10 at 60:13-19.)

         A. The elements of an equal protection ...

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