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George v. Board of Education of Township of Millburn

United States District Court, D. New Jersey

July 23, 2014

OMARI GEORGE, a minor; DARYL GEORGE and BRENDA BARNES-GEORGE, individually and as Parents and Natural Guardians of Omari George, Plaintiffs,
BOARD OF EDUCATION OF THE TOWNSHIP OF MILLBURN; RICHARD BRODOW, personally and in his Official Capacity; WILLIAM MIRON, personally and in his official capacity; and MICHELLE PITTS, personally and in her Official Capacity, Defendants

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For OMARI GEORGE, a minor, BRENDA BARNES-GEORGE, individually and as Parents and Natural Guardians of Omari George, DARRYL GEORGE, Plaintiffs: COLLEEN PATRICIA CYPHERS, LEVIN CYPHERS, TOMS RIVER, NJ.

For BOARD OF EDUCATION OF THE TOWNSHIP OF MILLBURN, MICHELLE PITTS, personally and in her Official capacity, WILLIAM MIRON, personally and in his Official capacity, RICHARD BRODOW, personally and in his Official capacity, Defendants: MICHAEL S. MIKULSKI, II, CONNOR WEBER & OBERLIES, P.C., MOORESTOWN, NJ.


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WILLIAM J. MARTINI, United States District Judge.

Plaintiffs O.G., Daryl George, and Brenda Barnes-George allege race-based discrimination at Millburn High School. Plaintiffs further allege that the Board of Education of the Township of Millburn (the " Board" ) violated O.G.'s due process rights when it expelled O.G. from school. The four Defendants--the Board and three Millburn school administrators--each move for summary judgment on all claims pursuant to Federal Rule of Civil Procedure 56. There was no oral argument. Fed.R.Civ.P. 78(b). For the reasons set forth below, Defendants' motion is GRANTED IN PART, and DENIED IN PART.


There are three Plaintiffs in this case. Plaintiff O.G. was formerly a student at Millburn High School. Plaintiffs Daryl George and Brenda Barnes-George (the " Plaintiff Parents" ) are O.G.'s parents.

There are four Defendants in this case. The first Defendant is the Board. The other Defendants (the " Individual Defendants" ), who are named as Defendants in their official and personal capacities, all worked in the Millburn School System. Defendant Dr. Richard Brodow was Millburn's Superintendent of Schools; Dr. William Miron was the Principal of Millburn High School; and Dr. Michelle Pitts was the Vice Principal of Millburn High School.

Unless otherwise noted, the following facts are undisputed. O.G. is an African-American male. Defendants' Statement of Material Facts Not In Dispute (" DSM" ) ¶ 1, ECF No. 56-3. O.G. enrolled at Millburn High School in September 2007. Id. During his time at Millburn High, O.G. was subjected to racist epithets and, at times, violence. Following an altercation that occurred on January 9, 2009, O.G. was expelled from school. O.G. was then home-schooled. O.G.'s expulsion was ultimately commuted to a suspension, and O.G. was allowed to return to Millburn High School. After graduating, O.G. went on to college at Morehouse University.

A. Incidents Involving O.G. Prior to January 9, 2009

1. Freshman Year

In March 2008, when he was a freshman, O.G. was involved in a physical altercation with a junior who was Asian-American (the " Junior" ). Id. ¶ 4. There is no evidence that O.G. and the Junior were involved in any prior or subsequent altercation. Id. ¶ 7. During the altercation, O.G.'s nose was broken. Plaintiffs' Counterstatement of Contested Material Facts (" PSM" ) ¶ 6, ECF No. 57-2. According to O.G., the Junior said he would " beat [O.G.'s] black ass." Id. ¶ 4. As a result of the altercation, the Junior was suspended for two days and O.G. was given five days detention. Id. ¶ 7. Though the incident with the Junior occurred in 2008, an accident report was not written until March 11, 2009. Id. ¶ 10. At her deposition, Vice Principal Pitts testified that, besides from this March 11, 2009 accident report, there are no records that " support any additional claims of race-based harassment, intimidation, discrimination or bullying during O.G.'s freshman year." DSM ¶ 8. However, O.G. testified that there were other occasions during his Freshman year when he was subject to race-based bullying. Specifically, O.G. testified that his friends (and apparently O.G., as well) were called names such as " wigger" and " wangster." O.G. Dep. Tr. at 37:14-38:19, ECF Nos. 57-4 & 57-5. O.G. testified that he would report these incidents to Dr. Pitts and fill out an incident report. Id. at 38:22-25.

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O.G. also testified that he did not know of any discipline handed down based on the incident reports he provided to Dr. Pitts. Id. at 40:9-12.

2. Sophomore Year Through January 8, 2009

Vice Principal Pitts testified at her deposition that she could not recall any reported incidents of race-based harassment or bullying involving O.G. from the beginning of O.G.'s sophomore year until January 8, 2009. Pitts Dep. Tr. at 71:15-20, ECF No. 56-5. O.G. testified differently. He said that in his Sophomore year he reported to Dr. Pitts that another student told him, " get out of the way, blackie." O.G. Dep. Tr. at 48:19-15. O.G. testified that on another occasion, this same student stopped him in the hall and said, " yo, yo, blackie." Id. at 49:17-50:12. O.G. testified that the student took his ipod, told O.G. that he didn't " listen to nigger music anyway," and proceeded to drop the ipod on the ground. Id. O.G. testified that he reported this incident in an incident report. Id. at 50:9-15. O.G. testified that Dr. Pitts said she would do a full investigation but O.G. never heard of any discipline based on the investigation. Id. at 51:21-52:6. O.G. testified that on another occasion, the same student called him a " wigger." Id. at 52:7-16. Additionally, O.G. testified that Millburn High School students accosted him at a diner one weekend and called him a " tough nigger." O.G. believes his father wrote a letter informing the school about the incident. Id. at 55:17-58:16.

B. January 8, 2009 Incidents

On January 8, 2009, O.G. was involved in an incident where two of his friends were pushed by upper-classmen who uttered racial comments. DSM ¶ 11. According to O.G., one of the aggressors called O.G. " nigger" and said that he " [didn't] like black people in [his] hallway." PSM ¶ 23. According to O.G., this student said he would beat O.G.'s " black ass." Id. ¶ 23. O.G. testified that the student then shoved O.G. and slammed O.G.'s head into a locker. O.G. Dep. Tr. at 64:8-10. Vice Principal Pitts's notes reflect a different story than the one offered by O.G. According to Vice Principal Pitts's notes, which are undated, " the senior who hit [O.G.] made a rude remark which was in no way racist." Motion for Summary Judgment (" MSJ" ), Ex. I, ECF No. 56-12.

Later in the day, O.G. was again confronted by the upper-classmen involved in the earlier incident. DSM ¶ 12. O.G. testified that the upperclassmen pushed O.G.'s friend, and that they also punched and scratched O.G. Id. Two school staff members, Mr. Schilp and Ms. Osborne, were present during the altercation. Id. ¶ 13. In a written statement dated roughly six months after the fact, Mr. Schilp wrote that he did not see the beginning of the fight but he did observe O.G. and another student grappling. Id. ¶ 14; MSJ, Ex. E, ECF No. 56-8. Mr. Schilp stated that he did not see the beginning of the fight. He further stated that he did not hear any racial comments uttered. Id. Like Mr. Schilp, Ms. Osborne also wrote a statement about the events roughly six months after it occurred. MSJ, Ex. F, ECF No. 56-9. In her statement, Ms. Osborne said that she saw O.G. throw his book bag down and proceed to hit another student. While Ms. Osborne reported that another student involved in the altercation said to O.G., " [y]ou're fucking dead, faggot," Ms. Osborne did not report hearing any racial insults. Id.

When this second incident was broken up, Vice Principal Pitts told O.G. to get medical attention in the nurse's office. PSM ¶ 31. O.G. returned from the nurse's office and told Vice Principal Pitts what

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happened. Vice Principal Pitts said she would investigate. Id. ¶ 32.

Later in the day, O.G. and his friends were confronted by a different group of students. This group of students called O.G. a " nigger pussy," said they would " beat [O.G.'s] black ass," and prevented O.G. from entering a classroom. DSM ¶ 16; PSM ¶ 34. There was no physical contact, but a staff member named Ms. Cohen separated the students. Id. In a statement written more than five months after the fact, Ms. Cohen stated that she did not hear the other student say anything to O.G. Id. ¶ 18; MSJ, Ex. G, ECF No. 11. Instead, Ms. Cohen heard O.G. shout at the other student. Id.

The students involved in this incident filled out incident reports reflecting the use of racially charged language. Opposition to Defendants' Motion for Summary Judgment, Exs. G-I, ECF Nos. 57-9, 57-10, 57-11. Asked how he could have handled the situation differently, one of O.G.'s friends wrote, " I don't know happened too many times before." ECF No. 57-9. Vice Principal Pitts testified that when she spoke with students involved in the incident, they admitted to using the word " pussy" but denied using the word " nigger." PSM ¶ 36. Without calling any parents, Principal Miron and Vice Principal Pitts decided to schedule a mediation session for the next morning. Id. ¶ 39.

C. January 9, 2009 Mediation

On January 9, 2009, Principal Miron and Vice Principal Pitts convened a mediation session with O.G. and some of the students involved in the previous day's altercations. During the session, the students voiced their grievances. According to Principal Miron's notes, the students were told to " stop pushing buttons." MSJ, Ex. J, ECF No. 56-13. Principal Miron's notes indicate that the students at the session were told to see administrators for any individual discussions. Id. The notes also indicate that the students were advised of a " zero tolerance" policy regarding bullying. Id. Finally, the notes indicate that the students agreed to avoid confrontations and immediately report any " further occurrences." Id. No students were disciplined as a result of the mediation. PSM ¶ 40.

According to his notes from the mediation, Principal Miron learned at the mediation that " these 2 groups have been feuding for months without reporting it." MSJ, Ex. J. Similarly, Vice Principal Pitts's account of the mediation session states that " the soph [including O.G.] indicated that the seniors had been bothering them for a while but they neglected to report anything to the administrators." MSJ, Ex. I, ECF No. 56-12. O.G. takes issue with these statements to the extent they suggest that he did not report prior bullying. Plaintiffs' Response to Defendants' Statement of Material Facts ¶ 22, ECF No. 57-2.

D. January 9, 2009 Incident Involving a Baseball Bat

At some point on January 9, 2009, the day of the mediation, O.G. called his father and told him about threats from other students. DSM ¶ 23. O.G. confirmed that his father and brother would come to school at the end of the day to watch O.G.'s wrestling practice. Id.

At the end of the school day, O.G.'s father and brother arrived at the school. O.G. and his brother encountered the students involved in the incident from earlier in the day where O.G. was allegedly called a " nigger pussy." Id. ¶ 24. A heated exchange followed. Id. ¶ 25. O.G. claims that he was told, " we're going to kill you niggers." O.G. Dep. Tr. at 117:9-118:1. O.G. and his brother proceeded to go to their father's car, which was located in the

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school parking lot. DSM ¶ 25. O.G.'s brother took a baseball bat out of the trunk. O.G. and his brother then walked back towards the school and the people who were involved in the heated exchange from moments earlier. Id. ¶ ¶ 25-26. O.G. testified that he and his brother headed back towards the school because they were being chased by the other students and O.G.'s father told them not to get trapped in their car. O.G. Dep. Tr. at 121:9-17.

When O.G. and his brother headed back toward the school, they got into a fight with the other students. One student was hit by the baseball bat. DSM ¶ 27. O.G. maintains that he never touched the bat. PSM ¶ 47. At some point, O.G.'s father became involved in the fight. DSM ¶ 29. When the fight broke up, O.G., O.G.'s brother, and O.G.'s father got into their car and tried to leave the parking lot, but they were blocked by people who stood in the car's path. Id. ¶ 30. An ambulance came for the student who was hit with the bat. Id. ¶ 31. Millburn police arrived on the scene and took O.G., O.G.'s brother, and O.G.'s father to the police station. Id. ¶ 32.

E. O.G. Is Disciplined

1. The Board Expels O.G.

On January 9, 2009, after the fight involving the baseball bat, Principal Miron and Superintendent Brodow wrote O.G.'s father a letter informing him that O.G. was suspended for nine days beginning on January 12, 2009. Opposition to Defendants' Motion for Summary Judgment (" Opp." ), Ex. L., ECF No. 57-14. No disciplinary actions were taken against the other students involved in the incident with the baseball bat. PSM ¶ 49. On January 13, 2009, Superintendent Brodow wrote a letter to O.G.'s father informing him that he had recommended that the Board either expel O.G. or suspend O.G. for one year. Opp., Ex. O.

A hearing before the Millburn Board of Education was scheduled for January 21, 2009, well within the 30 day window for hearings provided by New Jersey law. DSM ¶ 35; N.J.A.C. 6A:16-7.3(a)(10)(iii) (requiring a hearing within 30 days of a student's suspension). The January 21, 2009 hearing was adjourned so O.G. could retain counsel. DSM ¶ 35. The hearing was rescheduled for February 2, 2009. Id. ¶ ¶ 35-36. The hearing was then adjourned a second time, this time because O.G.'s lawyer had a conflict and O.G. needed to secure replacement counsel. Id. ¶ 36. The hearing was rescheduled for February 11, 2009. Id. ¶ 37.

On February 11, 2009, the Board convened to hear O.G.'s case. Superintendent Brodow recommended expelling O.G. Superintendent Brodow did not recommend suspending O.G. PSM ¶ 54. O.G. requested a third adjournment, arguing that the hearing should be put off until the resolution of criminal charges arising out of the baseball bat incident. Id. ¶ 37. O.G. wanted the hearing adjourned so that he could testify without waiving his Fifth Amendment privilege. The Board President agreed to adjourn the hearing if O.G. agreed not to bring a civil suit against the Board. Id. ¶ 38. O.G. refused, and the hearing proceeded. Id. ¶ 39. Ten witnesses testified. Id. ¶ 40. O.G. was not among them. The witnesses included students, parents, and administrators. Id. The witnesses were subject to cross examination. Id. ¶ 41.

Witnesses testified that when O.G. exited the school on January 9, 2009, O.G. and his brother threatened the other students. Board Hearing Tr. at 19:1-10, 41:24-42:23, ECF Nos. 57-18, 57-19. There was testimony that after an exchange of words, O.G. and his brother went to their father's

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car, that O.G.'s brother grabbed a baseball bat, and that the brothers then headed back toward the school. The student who was hit with the bat testified that O.G.'s brother hit him and that O.G. then grabbed him from behind. Id. at 19:20-20:11. After hearing this testimony, the Board voted to expel O.G. Id. ¶ 42. O.G. was then home-schooled. O.G. Tr. at 137:19-22.

2. O.G. Appeals and Succeeds In Getting Expulsion Converted Into Suspension

On May 28, 2009, O.G. filed a verified petition of appeal with the Commissioner of Education of New Jersey. MSJ, Ex. O, ECF No. 56-19. In that petition, O.G. argued that the Board " acted arbitrarily, capriciously, and against the weight of the evidence by expelling O.G. and have otherwise violated O.G.'s rights under the State and Federal Constitutions by depriving him of a public education at Millburn High School." Id. A hearing was scheduled before the Office of Administrative Law on August 31, 2009 and October 6, 2009. D.L.G. AND B.B-G ON BEHALF OF O.G. v. BOARD OF EDUCATION OF THE TOWNSHIP OF MILLBURN, ESSEX COUNTY (" ALJ Decision" ), OAL DKT. NO. EDU 07239-09, slip op. at 2 (Sept. 22, 2010), ECF No. 56-20. After O.G.'s counsel withdrew, the hearing was adjourned. O.G. then retained new counsel. O.G.'s new counsel then withdrew. O.G. then retained a third lawyer.

Before the hearing began, O.G. filed a motion on March 18, 2010 seeking to vacate his expulsion, citing, among other things, procedural errors in the hearing process before the Board. Id. at 3. The Administrative Law Judge assigned to the case, Ellen S. Bass (" the ALJ" ) reserved decision. The ALJ then took testimony over the course of three days spanning April and June 2010. Id. Vice Principal Pitts, Principal Miron, and Superintendent Brodow all testified. Id. at 13. Notably, Superintendent Brodow explained that while his letter to O.G.'s parents indicated that he was recommending a suspension or expulsion, he always believed an expulsion was proper. Id. at 17.

Most importantly, the ALJ heard testimony from O.G. The ALJ explained: " O.G.'s testimony offered insight into what the Board might have heard had it granted his adjournment request, and O.G. had chosen to testify." Id. at 13. O.G. testified that there was " an atmosphere of harassment and discrimination" at his school. Id. at 13. The ALJ noted that another student had testified before the Board that racial slurs were common at Millburn High School, and that O.G. was frequently called " nigger." Id. at 11. O.G. testified that on January 9, 2010, he was only trying to get away from other students when the fight broke out. Id. at 14-16. O.G.'s testimony directly contradicted the testimony of other witnesses, who related that O.G. instigated a fight by threatening to shoot fellow students. Id. at 16.

The ALJ stated: " [a]t the hearing before me, O.G. offered a version of the events that lacked credibility, and in no way caused me to question the reasonableness of the Board's decision below." Id. at 21. The ALJ recognized that O.G.'s description of the " racially charged atmosphere at Millburn High School" was " disturbing," but she also found that " no words or epithets could justify the violence that took place." Id.

While the ALJ found that " [t]he determination of the Board to impose an expulsion was reasonable under the facts it heard that evening," id. at 19, the ALJ concluded that as a matter of law the Board did not have the power to expel O.G, id. at 22. Citing to a recent decision

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from the New Jersey Commissioner of Education, M.R. v. Board of Trustees of the Hoboken Charter School, EDU 09662-09, Final Decision (March 22, 2010) --a decision that the ALJ only learned about while she was reviewing the parties' post-hearing submissions--the ALJ held that because O.G. did not have a prior long-term suspension, the Board only had the power to issue a long-term suspension, not an expulsion. The ALJ ordered that O.G. be allowed to return to school.

In her decision, the ALJ also found that the Board did not violate O.G.'s due process rights. First, the ALJ noted that O.G.'s due process rights were not violated because the Board failed to grant a third adjournment. Id. at 20-21. The ALJ recognized that O.G. wanted an adjournment so that he could resolve pending criminal charges and then testify before the Board without waiving his Fifth Amendment privilege. However, the ALJ held that " there is no absolute right to a stay of a civil matter pending the outcome of criminal proceedings." Id. at 20. Second, the ALJ found that the Board did not act arbitrarily, capriciously, or unreasonably when the Board offered to adjourn the hearing on the condition that O.G. waive his civil charges. Id. at 21-22. The ALJ explained that this offer was a settlement offer and was understood as such by O.G.'s counsel.

O.G. appealed the ALJ's decision to the New Jersey Commissioner of Education. The Commissioner upheld the decision with one modification. MSJ, Ex. Q, ECF No. 56-21. The Commissioner held that the Board did not have to reinstate O.G. but could choose to continue the long term suspension. There was no appeal of the Commissioner's decision to the New Jersey Superior Court. O.G. ultimately returned to Millburn High School. As a result of what he had been through, including his expulsion, O.G. was diagnosed with Post ...

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