aid of the Onondaga
County Human Rights Commission. The mediation concluded with an
agreement, but Mrs. Booker continued to express displeasure. A second
mediation between the parties was then scheduled with the assistance of
the New Justice Mediation Center. Another agreement was reached on
January 27, 1999. The new agreement provided that the District would
place Elisabeth with a new math teacher, see that she got remedial help
and make certain that the new math teacher communicated with Mrs.
Booker. Any new concerns were to be made in writing.
After the altercation between Elisabeth and Felicia, Mrs. Booker filed
a complaint with the New York State Division of Human Rights complaining
about how it was handled by the District. The District denied the
complaint, but entered into a colloquy with her mediated by the Human
Rights Division. The attempt subsequently miscarried because, in the
opinion of the District, Mrs. Booker acted unreasonably.
In January 2000, Mrs. Booker made a complaint with the United States
Department of Education, Office of Civil Rights ("ORC"). The complaint
pertained to the May incident and contended that it was an unprovoked
assault upon Elizabeth that caused her a serious personal injury. The ORC
looked into the matter and proposed that the District enter into a
voluntary resolution agreement to settle the complaint. The District
followed the suggestion and agreed to review its disciplinary policies
and revise them if necessary; conduct in-service training on racial
harassment for those involved in the disciplinary process; and to offer
to meet with the Bookers regarding disciplinary procedures. The District
found that it did not have to revise its disciplinary policies, conducted
the in-service training and offered to meet with the Bookers about the
disciplinary procedures. The Bookers turned down the District's offer.
After the instant action had been commenced, the Booker's filed a
complaint containing essentially the same allegations in the New York
State Supreme Court. Due to the fact that a similar lawsuit was also
extant, the State Court dismissed the complaint.
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d,
states: No person in the United States 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 receiving Federal financial assistance.
As a threshold matter, Title VI claims cannot be asserted against an
individual defendant for the same reason they cannot be asserted under
Title IX — the individual is not the recipient of federal funding.
Consequently, the claim, even if viable, will have to be dismissed
against the individual defendants in this action. Title VI covers only
those situations where "federal funding is given to a non-federal entity
which, in turn provides financial assistance to the ultimate
beneficiary." Soberal-Perez v. Heckler, 717 F.2d 36, 38 (2d Cir. 1973);
J. & L. Parking Corp. v. United States, 834 F. Supp. 99, 104-05
(S.D.N.Y. 1993), aff"d, 23 F.3d 397 (2d Cir. 1994) (Table). Plaintiffs
have not alleged in their amended complaint that the District is a
recipient of federal financial aid. Plaintiffs, thus, have failed to
state a claim for relief under Title VI against the District. Therefore,
the Title VI claim is dismissed with leave to re-plead in accordance with
the above noted requirements.
Plaintiffs have also made claims asserting violations of
42 U.S.C. § 1983 and § 1981. A party who has a cause of
action based on § 1983 may sue a "person" who, acting under color of
state statute, custom or policy violates the individual's constitutional
rights. Local governments may be sued directly under § 1983 where the
alleged unconstitutional action is part of an official policy or custom
of a government agency Monell v. Department of Social Services of the
City of New York, 436 U.S. 658, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611
(1978). For a municipality to be liable for the actions of its employees
or agents, they must be executing a governmental policy or custom,
"whether made by its lawmakers or those whose edicts or acts are fairly
said to represent official policy." Id. at 694, 98 S.Ct. at 2027. For
purposes of § 1983, school districts are considered to be local
governments and are subject to similar liability as local governments
under Monell. Id. at 696-97, 98 S.Ct. at 2039.
In Jett v. Dallas Independent School District, 491 U.S. 701, 1095
S.Ct. 2702, 105 L.Ed.2d 598 (1989), the Supreme Court held that municipal
actors were not subject to liability under § 1981 and that § 1983
provides the exclusive remedy against municipalities for violations §
1981 rights. Id. at 732, 1025 S.Ct. at 2721. In 1991, Congress answered
by amending § 1981 to include a provision that, "The rights protected
by this section are protected by impairment by non-governmental
discrimination and impairment under color of State law."
42 U.S.C. § 1981(c). Where defendants to a lawsuit are state actors
§ 1981 claims merge into § 1983 claims. Because § 1981
provides no broader remedy against a state actor than § 1983 and since
they merge into one another, the court need provide no further analysis
on this point. The § 1981 claim is treated exactly like the §
1983 claim, becomes merged into it and is considered as a single claim.
Pearson v. Macon-Bibb County Hospital Authority, 952 F.2d 1274, 1278 n. 3
(11th Cir. 1992).
In Graham v. Kentucky, 473 U.S. 159,105 S.Ct. 3099, 87 L.Ed.2d 114
(1985), the Supreme Court ruled that in order for an individual to be
liable in his or her official capacity under § 1983, the liability of
the governmental agency must be established under Monell. Graham, 473
U.S. at 166 n. 14, 105 S.Ct. at 3106 n. 14. On the merits, to establish
personal liability in a § 1983 action, it is enough to show that the
official, acting under color of state law, caused the deprivation of a
federal right. A plaintiff need not demonstrate a connection to a
government policy or custom that is required under Monell. Monroe v.
Pape, 365 U.S. 167, 81 S.Ct. 473, 2 L.Ed.2d 492 (1961). More is required
in an official capacity suit action, however, for a governmental entity
is liable under § 1983 only when the entity is a "`moving force'"
behind the deprivation, Polk County v. Dodson, 453 U.S. 312, 326, 102
S.Ct. 445, 454, 70 L.Ed.2d 509 (1981) (quoting Monell, 436 U.S. at 694,
105 S.Ct. at 3037). Based upon this distinction, district courts have
dismissed official capacity claims against individuals as redundant or
unnecessary where Monel claims are asserted against an entity. Union
Pacific Rail Road v.Village of Spouth Barrington, 958 F. Supp. 1285
(N.D.Ill. 1997). The real party in interest in an official capacity suit
is the governmental entity and not the named official. In this case,
because plaintiffs bring only official capacity claims against the
individual defendants and a Monell type claim against the District, they
are redundant to the the claims against the District, and the court
dismisses plaintiffs' official capacity claims against the individual
The District's policy concerning the handling of allegation racial
harassment is to investigate the claim and, when
the investigation shows
the harassment took place, to discipline the culprits. (Def.'s Ex. N,
Dep. of Gray, pp. 12-14, 37-40 and Def.'s Ex. V, Dep. of Gilkey, pp.
45-46). Due process for accused parties is observed and the District is
legally required to prove any disciplinary charges with competent and
substantial evidence. Education Law § 3214. If, after investigating
the incident, the District finds the accusations to be substantiated,
disciplinary measures are imposed. If the charges are determined to be
unsubstantiated, no discipline may be imposed, and the parties are
counseled regarding proper interracial relationships.
The District's policy is consistent with the requirements of New York
Education Law § 3214, accompanying regulations and decisions of the
Commissioner of Education. See, Appeal of Duffy, 36 ED. Dept. Rep. 256
(1996); Davis v. Monroe County Board of Education, 526 U.S. 629, 648-50,
119 S.Ct. 1661, 1673, 143 L.Ed.2d 839 (1999).
The District policy protects the students and their rights and affords
the accused student and parents an opportunity to appear and discuss the
conduct under review. The procedure is designed to assure claims of
racial harassment are investigated and receive an accurate
determination. The District is compelled to secure the rights of every
student, including the ones accused in this case. The record shows that
when the District's investigation disclosed that Elisabeth's allegations
were proved, disciplinary action against the offender was quickly taken.
It also appears that the District's actions discouraged harassment
The court finds that plaintiffs' argument does not support a finding of
liability against the District for deliberate conduct through a policy or
custom which caused a deprivation of the parents' or Elisabeth's civil
rights. The official policy of the District is not to illegally
discriminate for any reason in all matters relating to the administration
and supervision of the public schools and all policies related thereto.
Accordingly, plaintiffs' Title VI claim is DISMISSED with leave to
re-plead, the time to do so expiring 30 days after the date of this
order. Defendants may renew this motion as to that claim if such pleading
has been filed. If no amended pleading is received by that time, the
claim shall be deemed abandoned and dismissed with prejudice. Plaintiff
official capacity claims against the individually named defendants are
DISMISSED, and Defendants motion for summary judgment as to the §
1983 and § 1981 claims is GRANTED and the complaint is dismissed as
to those two claims.
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