Case 1:16-cv-00115-ACK-KJM Document 113 Filed 04/16/18 Page 1 of 15 1010 RUSSELL A. SUZUKI Attorney General of Hawaii PageID #: 2084 CARON M. INAGAKI 3835 MARIE MANUELE GAVIGAN 6585 Deputy Attorneys General Department of the Attorney General, State of Hawaii 425 Queen Street Honolulu, Hawaii 96813 Telephone: (808) 586-1300 Facsimile: (808) 586-1369 Email: marie.m.gavigan@hawaii.gov Attorneys for Defendant STATE OF HAWAII, DEPARTMENT OF EDUCATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII K.S-A, a minor and J.S-A, a minor, by and through JOSHUA DOUGLAS FRANKLIN, as their Guardian Ad Litem, Plaintiffs, v. Civil No. CV 16-00115-ACK-KJM DEFENDANT STATE OF HAWAII, DEPARTMENT OF EDUCATION’S MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT, FILED MARCH 1, 2018; CERTIFICATE OF SERVICE STATE OF HAWAII, DEPARTMENT OF EDUCATION, Defendant. HEARING: Date: May 7, 2018 Time: 11:00 a.m. Judge: Alan C. Kay Trial: July 24, 2018 725864_1.DOC Case 1:16-cv-00115-ACK-KJM Document 113 Filed 04/16/18 Page 2 of 15 1011 PageID #: DEFENDANT STATE OF HAWAII, DEPARTMENT OF EDUCATION’S MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT, FILED MARCH 1, 2018 Defendant STATE OF HAWAII, DEPARTMENT OF EDUCATION (hereinafter “DOE”), by and through its attorneys, Russell A. Suzuki, Attorney General, and Caron M. Inagaki and Marie Manuele Gavigan, Deputy Attorneys General, submits this memorandum in opposition to Plaintiffs’ Motion for Partial Summary Judgment, filed on March 1, 2018. I. INTRODUCTION Plaintiffs, K. S-A, a minor, and J. S-A, a minor, by and through JOSHUA DOUGLAS FRANKLIN, as their Guardian Ad Litem (“Plaintiffs”), instituted this civil action on March 15, 2016, against Defendants, Hawaii School District, HiloWaiakea Complex, and Brad Bennett and Erin Williams, both in their official capacities. Plaintiffs made claims pursuant to Title IX of the Education Act, and for alleged civil rights violations pursuant to §1983. Their claims arose out of their allegations that they were subjected to gender-based harassment and discrimination while they attended Hilo Union Elementary School and Waiakeawaena Elementary School. Plaintiffs allege that they were subjected to repeated student-on-student harassment in the form of constant bullying and name-calling. Specifically, Plaintiffs alleged that they were repeatedly called “fag,” and/or “queer” due to the 725864_1.DOC Case 1:16-cv-00115-ACK-KJM Document 113 Filed 04/16/18 Page 3 of 15 1012 PageID #: fact that they are perceived to be gay. However, DOE was not aware of these allegations until March 31, 2015, when Plaintiffs’ father posted a video on the internet complaining of this alleged harassment. After the video was made public, DOE became aware of the allegations. In January, 2018, Plaintiffs amended their Complaint to change the Defendant from Hawaii School District, Hilo-Waiakea Complex, and Brad Bennett and Erin Williams, both in their official capacities to State of Hawaii, Department of Education. The only remaining claims in the amended complaint are the Title IX claim for alleged violation of civil rights and a claim for negligent infliction of emotional distress. II. STATEMENT OF FACTS Plaintiffs began attending Hilo Union Elementary School (“Hilo Union”) in April, 2012, during the last quarter of the 2011-2012 school year. Plaintiffs continued to attend Hilo Union until they stopped attending school on April 1, 2015. Exhibit “B,” Bates page 034. Plaintiffs stopped attending school on April 1, 2015, because their father, Joshua Douglas Franklin (“Franklin”) made allegations that Plaintiffs had been subjected to “verbal abuse, harassment and discrimination” which he characterized as “LGBT discrimination.” Declaration (“Dec.”) of Gary S. Suganuma, at paragraph 4. Franklin demanded that Plaintiffs be immediately transferred to Waiakeawaena Elementary School because of the alleged 725864_1.DOC 2 Case 1:16-cv-00115-ACK-KJM Document 113 Filed 04/16/18 Page 4 of 15 1013 PageID #: discrimination. DOE agreed and arranged to have Plaintiffs begin school at Waiakeawaena on April 28, 2015. Dec. Suganuma, paragraphs 4-5. Plaintiffs began school at Waiakeawaena on May 5, 2015, and attended school for ten days, when Franklin pulled Plaintiffs out of Waiakeawaena on May 15, 2015. Exhibit “B,” Bates page 023; Exhibit “C,” Bates page 048. On August 18, 2015, Plaintiffs were enrolled at Kua O Ka Lā New Century Charter School. Exhibit “B,” Bates page 009; Exhibit “C,” Bates page 022. Plaintiffs attended Kua O Ka Lā until October, 2016, when Franklin again pulled his sons out of school due to alleged harassment. Franklin Declaration in support of motion, paragraph 18. On November 3, 2016, Franklin went to Pahoa Elementary School to see about enrolling his sons there. At Pahoa, Franklin spoke to the Principal about harassment and bullying of students and “LGBTQ issues.” Apparently displeased with the conversation that he had with Pahoa’s Principal, Franklin filed with DOE’s Civil Rights Compliance Office a complaint against the Principal. The Principal was cleared of any wrongdoing after the complaint was investigation. Declaration of Michelle Payne-Arakaki, paragraphs 4-6. Franklin then enrolled Plaintiffs in Waiakea Elementary School on November 30, 2016, but then withdrew Plaintiffs from that school on February 27, 2017. Dec. of Michelle Payne-Arakaki, paragraph 7. 725864_1.DOC 3 Case 1:16-cv-00115-ACK-KJM Document 113 Filed 04/16/18 Page 5 of 15 1014 PageID #: On February 27, 2017, Franklin returned to Pahoa Elementary to again enroll Plaintiffs at the school. Plaintiffs were enrolled at Pahoa on February 28, 2017. They were scheduled to start school on March 6, 2017, but they did not start school on that date. During March and early April, 2017, at least three to four times Franklin went to the Pahoa school office and was disruptive and threatening to the office staff. In addition, on at least two occasions the students going to lunch had to be diverted from their normal route to the cafeteria due to Franklin’s disruptive behavior both inside and outside the school administrative office. As a result of Franklin’s disruptive behavior, the police were called to the school, and eventually a trespass notice was served on Franklin. Franklin withdrew Plaintiffs from Pahoa on April 7, 2017, without either Plaintiff having attended one day of classes at the school. Dec. of Payne-Arakaki, paragraphs 8-10. During the time that Plaintiffs attended Hilo Union, they did not report constant “bullying and harassment” in the form of being called “queer,” “gay,” or “fag.” Dec. of Patti Andrade-Spencer, paragraphs 5 and 7. Dec. of Rory Souza, paragraphs 6-9. Dec. of Erin Williams, paragraph 9. Moreover, had students engaged in that kind of misconduct, the school administration and teachers would have made sure that that type of misconduct was addressed. Dec. of Patti Andrade-Spencer, paragraph 9. Dec. of Erin Williams, paragraph 10. Dec. of Loida Elloso, paragraph 9. 725864_1.DOC 4 Case 1:16-cv-00115-ACK-KJM Document 113 Filed 04/16/18 Page 6 of 15 1015 PageID #: Plaintiffs also complain about a “particularly galling incident” in which they allege that in Ms. Elloso’s class, K. S-A was called “faggot” and “queer,” that the class chanted that “K. S-A is going to hell and that his family is gay and whores,” and that his teacher, Ms. Elloso allegedly told K. S-A “that things like that wouldn’t happen to him if he believed in Jesus.” The only thing that is “particularly galling” about this alleged incident is that Plaintiffs allege it happened, when, in fact, it never happened. Dec. of Loida Elloso, paragraphs 4-6. Plaintiffs further complain that they had problems at Kua O Ka Lā, the charter school they next attended. That complaint was that a student masturbated in front of K. S-A on the bus and followed K. S-A around the school. While an incident did happen on the bus where a student masturbated in front of other students on the bus, his actions were not directed at K. S-A or any other student. All the students on the bus who were near the offending student were impacted by his actions. Dec. of Gordon Kaploula Thompson, paragraph 4. The Principal and Vice-Principal at Kua O Ka Lā addressed all concerns related to Plaintiffs, as well as any misconduct at the school. Plaintiffs complain that there is no “LGBTQ” training given by DOE; however, Plaintiffs have not provided any authority to show that “LGBTQ” training is required. On the other hand, DOE provides training to its employees related to avoidance of discrimination based on protected classes. Exhibit “E.” 725864_1.DOC 5 Case 1:16-cv-00115-ACK-KJM Document 113 Filed 04/16/18 Page 7 of 15 1016 III. PageID #: STANDARD OF REVIEW Under Federal Rule of Civil Procedure 56(a), summary judgment should be entered “if the movant shows 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). The moving party has the initial burden of establishing the absence of any genuine issues of material fact. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). In determining whether a genuine issue of material facts exists, all evidence and inferences to be drawn therefrom must be construed in the light most favorable to the nonmoving party. T.W. Elec. Services, 809 F.2d at 630–31. A fact is ‘material’ when, under the governing substantive law, it could affect the outcome of the case. A ‘genuine issue’ of material fact arises if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). IV. ARGUMENT A. Plaintiffs Have Failed to Properly Support Their Motion Plaintiffs have failed to properly support their motion, in that the exhibits submitted are not properly authenticated nor was a proper foundation laid for their 725864_1.DOC 6 Case 1:16-cv-00115-ACK-KJM Document 113 Filed 04/16/18 Page 8 of 15 1017 PageID #: admissibility. In addition, Plaintiffs have submitted improper hearsay testimony to support their motion. DOE asks the Court to strike Plaintiffs’ Exhibits “A,” and “C” – “E” as not properly authenticated.1 DOE further asks the Court to disregard Exhibit “A” along with those portions of the Declaration of Joshua Douglas Franklin that contain hearsay testimony that is not admissible pursuant to any exception to the hearsay rule, namely, paragraphs 3, 5, 6, 7, 8, 10, 13, 15, 16, 18, 22, 24, and 26. 1. Plaintiffs Have Not Properly Authenticated Their Exhibits DOE asks that this Honorable Court disregard Plaintiffs Exhibits “A” and “C” – “E.” For Exhibits “C” – “E,” which are deposition transcripts, Rule 30(f)(1) of Federal Rules of Civil Procedure (“FRCP”) requires certification by the court reporter that “the witness was duly sworn and that the deposition accurately records the witness’s testimony.” Moreover, proper authentication of deposition testimony in support of motions for summary judgment requires that in addition to the reporter’s certification, the names of the deponent and the name of the action be included. Here, although the name of the action and the deponent’s name are shown on the first page of each exhibit, the first page of the testimony, where the witness is identified and is shown to have taken the oath, is missing from 1 While DOE also objects to the lack of authentication of Plaintiffs’ Exhibit “F” and “G,” because DOE is also submitting excerpts from the same depositions, DOE will not contest authentication as to those two exhibits. 725864_1.DOC 7 Case 1:16-cv-00115-ACK-KJM Document 113 Filed 04/16/18 Page 9 of 15 1018 PageID #: Plaintiff’s exhibits. Also, Plaintiffs have failed to include the reporter’s certification from their exhibits. In addition to FRCP Rule 30(f)(1), Ninth Circuit case law requires proper authentication for evidence supporting a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773-774 (9th Cir. 2002) (“A trial court can only consider admissible evidence in ruling on a motion for summary judgment.” . . . “A deposition or an extract therefrom is authenticated in a motion for summary judgment when it identifies the names of the deponent and the action and includes the reporter’s certification that the deposition is a true record of the testimony of the deponent.”) With regard to Exhibit “A,” Plaintiffs’ counsel cannot properly authenticate that exhibit. Plaintiff’s Exhibit “A” purports to be “An Educator’s Guide” on “LGBTQ Youth,” and appears to be authored by a Vincent Pompei. Plaintiffs have not provided any authentication for the document, nor any foundation for its contents. Plaintiffs’ only attempt at authentication of the document is their counsel who has attested that Exhibit “A” is a “true and correct copy of LGBTQ Youth, An Educator’s Guide by Vincent Pompei. While Plaintiffs’ counsel also asserts that the document was obtained through discovery in this case, that assertion alone is not proper authentication. Plaintiffs’ counsel cannot attest to whether Vincent Pompei was indeed the author of the article or whether the article has been changed in any way. Without proper authentication, Exhibit “A” is inadmissible. 725864_1.DOC 8 Case 1:16-cv-00115-ACK-KJM Document 113 Filed 04/16/18 Page 10 of 15 1019 2. PageID #: Plaintiffs’ Hearsay Must Be Excluded The information contained in Plaintiffs’ Exhibit “A” is hearsay, not admissible within any exception to the Rule, and should not be considered by the Court for this motion. Plaintiffs have relied on the contents of their Exhibit “A” to prove the truth of the matter asserted, i.e., certain statistics and assertions related to LGBTQ students. DOE contests the use of this exhibit as it contains hearsay not within any exception to the rule. In addition, even if the Court were inclined to accept this document and rely on it to support Plaintiffs’ motion, there is a lack of foundation for its admission. There is no foundation to show that these statistics, if any at all, are applicable to Hawaii’s schools. Moreover, without a proper foundation laid for this exhibit’s admission into evidence, there is no relevance to the information in the exhibit, meaning that if these statistics are not relevant to Hawaii’s schools, then the statistics are not relevant to this motion. Franklin has submitted his Declaration to attempt to support Plaintiffs’ motion. However, almost half of Franklin’s Declaration contains inadmissible hearsay that is outside any exception to the hearsay rule. Most of Franklin’s hearsay statements are being used to prove the truth of the matter asserted, namely that Plaintiffs’ were allegedly subjected to harassment and that DOE officials did nothing about this alleged harassment. In many instances, Franklin does not identify to whom he allegedly made his statements, or who allegedly responded to 725864_1.DOC 9 Case 1:16-cv-00115-ACK-KJM Document 113 Filed 04/16/18 Page 11 of 15 1020 PageID #: him. Many of Franklin’s assertions are vague as to time and as to whom he is referring.2 Franklin’s hearsay assertions in his Declaration must be disregarded. B. All Alleged Facts Are in Dispute and Therefore Summary Judgment Must Be Denied Plaintiffs argue that the “facts” they present to this court are undisputed and therefore, they are entitled to judgment as a matter of law. Plaintiffs are well aware of the fact that all their alleged “facts” are in dispute, thus it was disingenuous of them to bring this motion before the court. 1. The Title IX Claim Count I of Plaintiffs’ Second Amended Complaint asserts a claim for violation of their civil rights pursuant to Title IX, 20 U.S.C. §1681(a). Plaintiffs have alleged that they have suffered “gender-based harassment” of which DOE knew and “failed to take immediate, effective remedial steps to resolve.” Title IX of the Education Amendments of 1972 provides as follows: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving financial assistance… 20 U.S.C. §1681(a). The United States Supreme Court has recognized an implied right of action under Title IX for student-on-student harassment, and has held that 2 For example, in paragraph 25 of Franklin’s Declaration, he asserts that “school officials at the District” refused to meet with him. Franklin does not say who these school officials are, or when these alleged refusals occurred. 725864_1.DOC 10 Case 1:16-cv-00115-ACK-KJM Document 113 Filed 04/16/18 Page 12 of 15 1021 PageID #: money damages are available in such suits. However, such actions are limited to those situations where it can be proved that the recipients of federal funding had adequate notice of the offending conduct. Davis v. Monroe County Board of Education, 526 U.S. 629, 639-40, 119 S.Ct. 1661, 1669 (1999). Liability for violation of Title IX lies in the DOE only when the DOE is deliberately indifferent to known acts of sexual harassment. Id. at 641. In order to state a claim for monetary damages for violation of Title IX, the plaintiff must show “that the school district intentionally failed to intervene and put a stop to the harassment. [citations omitted] A school district cannot be held liable under Title IX ‘for its negligent failure to remedy the sexually harassing behavior by a student’s peers despite its knowledge of such behavior’.” Doe v. Perry Community School Dist., 316 F.Supp.2d 809, 833 (S.D. Iowa 2004). Moreover, to state a claim under Title IX for student-on-student sexual harassment, a plaintiff must prove that sexual harassment was “so severe, pervasive and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Id. Here, Plaintiffs are alleging that DOE is liable to them for alleged genderbased harassment. Although Plaintiffs allege that in at least three schools that they attended within the space of two years, they were subject to numerous incidents of this alleged gender-based harassment, there is clearly a genuine issue of material 725864_1.DOC 11 Case 1:16-cv-00115-ACK-KJM Document 113 Filed 04/16/18 Page 13 of 15 1022 PageID #: fact as to whether the alleged gender-based harassment actually occurred. DOE has disputed all Plaintiffs’ allegations of harassment and has provided substantial other material facts to show that there is a genuine dispute as to liability. Importantly, Plaintiffs complain of this alleged harassment happening at afterschool programs, for example, the Boys and Girls Club of Hilo, and the A+ after school program. DOE has no responsibility for the Boys and Girls Club of Hilo and its after-school program. Dec. of Erin Williams, paragraphs 6 and 12. All reference to that after-school program must be disregarded by the Court. Moreover, DOE has no responsibility for the A+ after-school program and the Court should also disregard those allegations. Plaintiffs also argue that DOE was deliberately indifferent because its response to the alleged harassment and its training were somehow inadequate. DOE disputes the alleged “facts” as asserted by Plaintiffs. Moreover, DOE has provided substantial evidence that when confronted with misconduct by students, it took actions to remedy those situations. The allegations of harm made by Plaintiffs in this case are exaggerated, and in some cases, simply not correct. DOE took all necessary actions when informed of incidents of harm towards Plaintiffs. With regard to training, the testimony is clear that DOE provides training to its employees with regard to nondiscrimination based on sex, age handicapping condition, sexual orientation, and gender expression. Simply because DOE might 725864_1.DOC 12 Case 1:16-cv-00115-ACK-KJM Document 113 Filed 04/16/18 Page 14 of 15 1023 PageID #: not have a separate training program to address “LGBTQ issues” (whatever those may be and Plaintiffs have failed to define what those issues may be) does not mean that DOE is deliberately indifferent. Again, DOE disputes the alleged facts that provide the basis for the arguments in their motion. 2. The Negligent Infliction of Emotional Distress Claim With regard to Plaintiffs’ Second Claim for Relief, Negligent Infliction of Emotional Distress, the basis of this claim is that DOE has a “duty to train teachers and administrators to address and prohibit harassment on the basis of sexual orientation,” and a “duty to ensure equal educational opportunities, free from harassment, for all students, including Plaintiffs.” Plaintiffs further allege that DOE has breached these duties. Once again, because all facts are in dispute in this case, Plaintiffs are not entitled to summary judgment on their second claim for relief. DOE disputes all Plaintiffs’ allegations of harm, and all their alleged “undisputed facts” in support of their motion. Until these factual disputes are resolved, Plaintiffs are not entitled to any relief as requested in their Second Amended Complaint. V. CONCLUSION As shown in DOE’s Separate and Concise Statement of Facts in Opposition to Plaintiffs’ Motion for Summary Judgment, all facts related to this case are in 725864_1.DOC 13 Case 1:16-cv-00115-ACK-KJM Document 113 Filed 04/16/18 Page 15 of 15 1024 PageID #: dispute. Plaintiffs are aware that DOE disputes their claims, and therefore, there was no basis to file this motion. DOE has provided substantial admissible evidence in this record to refute Plaintiffs’ claims. Plaintiffs should not have filed this motion for summary judgment. Therefore, for all the reasons stated herein, DOE respectfully requests that this Honorable Court deny Plaintiffs’ motion for summary judgment. DOE further respectfully requests that this Honorable Court find that this motion was frivolous and without merit and award DOE its attorneys’ fees and costs for having to defend against it. DATED: Honolulu, Hawaii, April 16, 2018. /s/ Marie Manuele Gavigan MARIE MANUELE GAVIGAN Deputy Attorney General Attorney for Defendant STATE OF HAWAII, DEPARTMENT OF EDUCATION 725864_1.DOC 14 Case 1:16-cv-00115-ACK-KJM Document 113-1 Filed 04/16/18 Page 1 of 2 1025 PageID #: IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII K.S-A, a minor and J.S-A, a minor, by and through JOSHUA DOUGLAS FRANKLIN, as their Guardian Ad Litem, Civil No. CV 16-00115-ACK-KJM CERTIFICATE OF SERVICE Plaintiffs, v. STATE OF HAWAII, DEPARTMENT OF EDUCATION, Defendant. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the date indicated below a true and correct copy of the foregoing document was duly served by CM/ECF, to the following at the email address indicated below: blb@bancroftlawhi.com Brooks L. Bancroft, Esq. 688 Kinoole Street, Suite 105 Hilo, Hawaii 96720 Rob Roy Smith, Esq. rrsmith@kilpatricktownsend.com 1420 Fifth Avenue, Suite 3700 Seattle, Washington 98101 Scott Kolassa, Esq. skolassa@kilpatricktownsend.com 1080 Marsh Road Menlo Park, California 94025 725864_1.DOC Case 1:16-cv-00115-ACK-KJM Document 113-1 Filed 04/16/18 Page 2 of 2 1026 PageID #: Christina M. Gattuso, Esq. cgattuso@kilpatricktownsend.com th 607 14 Street, NW, Suite 900 Washington, DC 20005-2018 Attorneys for Plaintiffs K.S-A, a minor and J.S-A, a minor, by and through JOSHUA DOUGLAS FRANKLIN, as their Guardian Ad Litem DATED: Honolulu, Hawaii, April 16, 2018. /s/ Marie Manuele Gavigan MARIE MANUELE GAVIGAN Deputy Attorney General Attorney for Defendant STATE OF HAWAII, DEPARTMENT OF EDUCATION 725864_1.DOC 2