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Mumid v. Abraham Lincoln H.S.: US District Court : EDUCATION - no disparate impact Title VI claims; no money damages for EEOA; indemnity claims moot

Third-Party Plaintiff,
Third-Party Defendant.
Case No. 0:05-CV-2176 (PJS/JJG)
Daniel R. Shulman, GRAY PLANT MOOTY MOOTY & BENNETT, PA; Robert J.
Kolstad; R. Travis Snider, SNIDER LAW FIRM, LTD.; David L. Shulman, LAW
Paula Weseman Theisen and Sarah R. Schmitz, MEAGHER & GEER, P.L.L.P., for
defendants Abraham Lincoln High School and Institute for New Americans.
Sonya J. Guggemos, Margaret A. Skelton, and Kimberley K. Sobieck, RATWIK,
ROSZAK & MALONEY, P.A., for defendant/third-party plaintiff Special School District
No. 1.
Susan M. Tindal and Jon K. Iverson, IVERSON REUVERS, LLC, for third-party
defendant Metropolitan Federation of Alternative Schools, Inc.
Plaintiffs are a group of thirteen young men and women who were once students at
defendant Abraham Lincoln High School (Lincoln). Lincoln, a public alternative high school
in Minneapolis, was established to serve foreign-born students with limited English skills and
little formal education. When plaintiffs attended Lincoln, it was run by defendant Institute for
New Americans (the Institute) under an arrangement between third-party defendant
Metropolitan Federation of Alternative Schools (MFAS) and defendant/third-party plaintiff
Special School District No. 1 (District 1), the entity that runs the Minneapolis public schools.
Plaintiffs contend that they were badly educated and discriminated against at Lincoln in
violation of two federal laws and one state law: the Equal Educational Opportunity Act of 1974
(EEOA), which requires schools and school districts to make efforts to overcome language
barriers faced by students, 20 U.S.C. 1703(f); Title VI of the Civil Rights Act of 1964, which
prohibits recipients of federal funding from discriminating on the basis of, among other things,
national origin, 42 U.S.C. 2000d; and the Minnesota Human Rights Act (MHRA), which
likewise bars national-origin discrimination, Minn. Stat. 363A.13.
The Institute and District 1 move for summary judgment, as does MFAS. For the reasons
that follow, the Court grants the Institutes and District 1s motions. As a result of this ruling,
District 1s third-party complaint against MFAS, in which District 1 seeks recovery against
The March 13, 2006 order was entered b 1 y Judge Ann D. Montgomery, to whom this case
was assigned before being transferred to the undersigned.
MFAS if District 1 is held liable to plaintiffs, is now moot. The Court therefore denies MFASs
motion for summary judgment without addressing its merits.
The underlying facts are set forth in the Courts March 13, 2006 order on defendants
motions to dismiss [Docket No. 36]. Mumid v. Abraham Lincoln High Sch., Civ. No. 05-2176,
2006 WL 640510, 2006 U.S. Dist. LEXIS 9967 (D. Minn. Mar. 13, 2006).1 The parties largely
agree on the facts, but to the extent that the parties disagree, the Court recounts the facts in the
light most favorable to plaintiffs.
Lincoln was established in the late 1990s by the Institute, a nonprofit corporation. Inst.
Mem. Supp. Mot. S.J. (Inst. SJ Mem.) at 6 [Docket No. 136]; Inst. Ex. 46 at 2 Req. 3 [Docket
No. 119]. Lincoln itself is not a legal entity; rather, it is essentially a trade name of the Institute,
which operates Lincoln. See Inst. SJ Mem. at 6; Giles Aff. 6 [Docket No. 129]. The Court will
therefore sometimes refer to Lincoln and the Institute collectively as Lincoln.
The Institute is a member of another nonprofit entity, third-party defendant MFAS. Inst.
Ex. 46 at 2 Req. 3. MFAS is an umbrella organization whose members operate public alternative
schools. MFAS Mem. Supp. Mot. Partial S.J. (MFAS SJ Mem.) at 3 [Docket No. 112]. From
1997 through 2003, District 1 contracted with the Institute indirectly, through MFAS. During
that period, District 1 had an arrangement with MFAS whereby MFASs members (such as the
Institute) would operate alternative schools (such as Lincoln) on behalf of District 1. Inst.
Exs. 24-25. Beginning in mid-2003, District 1 contracted directly with the Institute for the
2In 2006, Lincoln changed its name to Lincoln International High School, and for the
2006-2007 school year, District 1 contracted directly with an entity by that name, not with the
Institute. Inst. Ex. 28. The parties have not, however, argued that this should have any impact on
this litigation.
3The information in this section about the individual plaintiffs is taken from District 1s
opening summary-judgment brief. Plaintiffs acknowledge that District 1s brief correctly sets
forth this information. Pl. Mem. Opp. Defs. Mots. S.J. (Pl. SJ Opp.) at 31 n.5 [Docket
No. 137].
4Minnesota has since replaced the BSTs with tests called the Graduation-Required
Assessments for Diploma or GRAD tests. Students who started eighth grade in 2005-06 or
afterwards must take the GRAD tests rather than the BSTs. Minn. Dept of Educ., BST,
nts/BST/index.html (last visited June 11, 2008).
education of students at Lincoln. Inst. Exs. 26-28.2 Since mid-2007, when Lincoln became a
public charter school funded by the State of Minnesota, District 1 has not had any authority,
direct or indirect, over Lincoln. Giles Aff. 7.
Plaintiffs are thirteen students who attended Lincoln between 1999 and 2006.3 Nine
plaintiffs were born in Somalia, and four in Ethiopia. All thirteen plaintiffs fled their native
countries and lived for some time in Kenyan refugee camps before immigrating to the United
States. Most plaintiffs were in their mid- to late teens when they immigrated, though one (Muna
Mohamed) was as young as fourteen and another (Maymuna Muktar Osman) was as old as
twenty. At the time of their enrollment at Lincoln, plaintiffs had varying, but generally low-tononexistent,
levels of formal schooling and familiarity with the English language.
In Minnesota, students cannot graduate from high school unless they accumulate enough
credits of course work and pass certain state-mandated tests. When plaintiffs attended Lincoln,
the required tests were the Basic Skills Tests (BSTs) in reading, writing, and mathematics.4
Two plaintiffs passed the BSTs (Amal Mohamed and Yurub Siyad) after receiving
disability-related accommodations from the state; two other plaintiffs (Amina Harun and
Mohamud Mohamed) passed the BSTs without receiving any accommodations. All four of these
plaintiffs graduated from Lincoln. One more plaintiff (Maymuna Muktar Osman) graduated
from Lincoln; it is not clear from the parties briefing whether she passed the BSTs or (as
sometimes happens) was exempted from doing so. The remaining eight plaintiffs did not
graduate from Lincoln; seven of these eight failed all portions of the BSTs, while one (Muna
Mohamed) passed the mathematics portion of the tests but failed the reading and writing
portions. Several of the plaintiffs were allowed to remain enrolled at Lincoln past their twentyfirst
birthdays, despite the fact that Lincoln received no public funding for students after they
turned twenty-one. Mpls. Pub. Sch. Mem. Supp. Mot. S.J. (Dist. 1 SJ Mem.) at 6, 11-25
[Docket No. 128].
Plaintiffs criticize Lincoln for its poor curriculum, its underqualified teachers, its failure
to assess students progress, its placement of students in a program (so-called Level 9B) that
provided little educational benefit and effectively guaranteed that the students would not
graduate, its failure to assess whether students needed special-education services, and its failure
to provide such services when needed. Pl. Mem. Opp. Defs. Mots. S.J. (Pl. SJ Opp.) at 5-18,
21-31 [Docket No. 137]. According to plaintiffs, Lincolns shortcomings amounted to
intentional discrimination against them on the basis of their national origin. Id. at 1 (The
evidence of record in this case establishes that defendants collectively were responsible for the
establishment and operation of a substandard high school that essentially warehoused immigrant
students until they aged out of the school system without even the rudiments of an adequate
Bigelow concluded 5 her report this way:
I have found much evidence that [Lincoln] failed to overcome
students English language learning needs to allow them to
participate in the educational program offered by the school
district. They failed in multiple and intersecting ways as they
chose program models, assessment tools/procedures and
instructional approaches that were not well suited to their unique
student population. Unprepared and unsupported teachers,
counselors and aid[e]s were left under the guidance of unprepared
administrators. Immigrant students at [Lincoln] deserved much
more. Their need for an education was crucial and now they are
left, again, after already having their education delayed or
interrupted, to make up for lost time on their own. It should not
have been this way for our newest Minnesotans.
Inst. Ex. 21 at 24.
education, solely because they were immigrants.). Plaintiffs also argue that because of the
schools many flaws, Lincoln failed to provide them an education designed to overcome
language barriers as mandated by the EEOA. Id.
With respect to the curriculum, plaintiffs deny that Lincoln had a coherent curriculum of
any kind. Id. at 6-7. They further argue that if such a curriculum existed, it was unsound. Id.
at 27-28. Specifically, plaintiffs allege that Lincolns instruction was a form of English
immersion and that immersion is not an effective approach for students like plaintiffs. Id. For
its part, Lincoln counters that it did have an appropriate curriculum, which was based on a
sheltered English model of instruction. Inst. Reply Mem. Supp. Mot. S.J. (Inst. Reply) at 2-5
[Docket No. 145]. But plaintiffs educational expert, Martha Bigelow, supports their contentions
that Lincolns curriculum was both insufficiently developed and poorly suited to Lincolns
student population. Inst. Ex. 21.5
Lincoln and District 1 have not challenged this reports 6 admissibility.
Plaintiffs also present evidence that teachers and the principal at Lincoln were
underqualified because they lacked necessary credentials. Pl. SJ Opp. at 8-9; Inst. Ex. 21 at 16-
18. The Institute counters by alleging that plaintiffs looked for licensing data in the wrong place
and therefore erroneously concluded that some state-licensed teachers were unlicensed. Inst.
Reply at 6-8. Thus there appears to be a dispute of fact over the credentials of Lincolns teachers
and its principal. For summary-judgment purposes, the Court assumes that at least some of the
teachers at Lincoln lacked proper teaching credentials.
Plaintiffs criticisms about special-education testing and services are borne out, in part, by
a report issued in June 2005 by the Minnesota Department of Education (MDE) after the
department investigated a students complaints about how Lincoln treated students with
disabilities. Shulman Aff. Ex. A [Docket No. 138].6 The MDE found that under one percent of
Lincolns student population in 2004-2005 was receiving special-education services. Id. at 4.
The MDE further found that students at Lincoln were required to wait at least one year after
enrolling in Lincoln before Lincoln or District 1 would evaluate them for special-education
services and that, in general, students were not evaluated until they had received at least three
years of English Language Learners (or ELL) instruction (i.e., instruction in the English
language for non-native speakers). Id. at 9 15.
District 1 and Lincoln do not deny that it was their policy to defer assessing students at
Lincoln for special-education services until the students had received three years of ELL
instruction. The MDE report on which plaintiffs rely, however, says that this policy was based
on District 1s belief that special-education assessments would not be reliable if they were done
any earlier because some part of a students assessment results might be attributable to Englishlanguage
deficiencies rather than genuine special-education needs. Id. The MDE, however,
found that District 1 and Lincolns policy of delaying assessment for three years was
impermissible under state and federal regulations. Id. at 11. The MDE also found that Lincoln
and District 1 violated state regulations by not developing adequate remediation plans for
students who failed the BSTs. Id.
A. Standard of Review
Summary judgment is appropriate if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A dispute over
a fact is material only if its resolution might affect the outcome of the suit under the governing
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a
fact is genuine only if the evidence is such that a reasonable jury could return a verdict for
either party. Ohio Cas. Ins. Co. v. Union Pac. R.R., 469 F.3d 1158, 1162 (8th Cir. 2006). In
considering a motion for summary judgment, a court must view the evidence and the inferences
that may be reasonably drawn from the evidence in the light most favorable to the non-moving
party. Winthrop Res. Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 468 (8th Cir. 2004).
B. Title VI and MHRA Claims
Title VI of the Civil Rights Act of 1964 forbids discrimination by recipients of federal
funding. Specifically, 2000d of Title 42 of the United States Code provides: No person in the
United States shall, on the ground of race, color, or national origin, be excluded from
7The MHRA provides in part:
It is an unfair discriminatory practice to discriminate in any manner
in the full utilization of or benefit from any educational institution,
or the services rendered thereby to any person because of race,
color, creed, religion, national origin, sex, age, marital status, status
with regard to public assistance, sexual orientation, or disability, or
to fail to ensure physical and program access for disabled persons.
Minn. Stat. 363A.13 subd. 1.
The parties agree that plaintiffs MHRA claims should be analyzed under the same legal
standards as plaintiffs Title VI claims. Dist. 1 SJ Mem. at 48-49; Pl. SJ Opp. at 63; see also
Brantley ex rel. Brantley v. Indep. Sch. Dist. No. 625, 936 F. Supp. 649, 657 n.16 (D. Minn.
1996). Accordingly, the Court will focus primarily on Title VI.
The parties also agree that the MHRA claims of eleven plaintiffs are untimely (those of
Ibrahim Mumid, Fadumo Muse, Fahmo Ahmed, Safiya Mohamed, Iftu Jibril, Maymuna Muktar
Osman, Misbah Ibrahim, Shamsa Ali Mohamed, Yurub Siyad, Muna Mohamed, and Amina
Harun). See Dist. 1 SJ Mem. at 47-48; Tr. Oral Arg. Jan. 3, 2008. The MHRA claims of those
plaintiffs are therefore dismissed for that reason, in addition to being dismissed on the merits.
participation in, be denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance. 42 U.S.C. 2000d. The MHRA contains an
even broader prohibition on discrimination by educational institutions.7 Minn. Stat. 363A.13.
Plaintiffs contend that Lincoln and District 1 violated 42 U.S.C. 2000d and the MHRA by
discriminating against them because they were not born in the United States.
District 1 and Lincoln concede that they are subject both to the MHRA and, because they
received federal funding, to 2000d. But they argue that plaintiffs have no evidence that either
defendant intentionally discriminated against plaintiffs. At most, say defendants, plaintiffs have
evidence that District 1s and Lincolns actions had a disparate impact on plaintiffs because of
their national origin. Dist. 1 Reply Mem. Supp. S.J. Mot. at 6 [Docket No. 150]; Inst. SJ Mem.
at 45.
The Court agrees with District 1 and Lincoln. The facts, viewed in the light most
favorable to plaintiffs, support, at most, a disparate-impact claim. It is settled law that disparateimpact
claims cannot be brought under Title VI; rather, Title VI prohibits only intentional
discrimination. Alexander v. Sandoval, 532 U.S. 275, 280 (2001). Thus, to establish a Title VI
violation, a plaintiff must prove that a defendants challenged actions were rooted in
discriminatory animus in a subjective intent to discriminate.
In general, there are two different methods of proving intentional discrimination: the
direct method and the indirect method. See Rogers v. City of Chicago, 320 F.3d 748, 753-54 (7th
Cir. 2003); Haywood v. Lucent Techs., Inc., 323 F.3d 524, 529 (7th Cir. 2003); Darke v. Lurie
Besikof Lapidus & Co., 550 F. Supp. 2d 1032, 1040-41 (D. Minn. 2008). Under the direct
method, a plaintiff with strong evidence of a defendants discriminatory intent, such as
discriminatory statements by key decision makers, may rely on that strong evidence to directly
establish intentional discrimination. See Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th
Cir. 2004); Darke, 550 F. Supp. 2d at 1041 ([T]he direct method applies when the plaintiff . . .
has strong evidence of discrimination.). The indirect method, available to plaintiffs with weaker
evidence of discriminatory intent, is based on the familiar three-step framework described in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Darke, 550 F. Supp. 2d at
1041 ([W]hen the plaintiffs evidence is weaker, McDonnell Douglas gives the Court a
framework for analyzing whether the evidence is nevertheless sufficient to support a verdict of
To the extent that plaintiffs have any evidence of intentional discrimination by either
Lincoln or District 1, that evidence is quite weak. And, as explained below, that weak evidence
is insufficient for a jury to find that either defendant intentionally discriminated. Although a
reasonable jury could perhaps find that District 1s and Lincolns actions produced a disparate
impact on plaintiffs because plaintiffs received a substandard education compared to United
States-born students, a reasonable jury could not find that either District 1 or Lincoln
intentionally discriminated against plaintiffs that is, provided a poor education to them
because of their national origin.
The Court therefore grants summary judgment to defendants on plaintiffs Title VI and
MHRA claims. Because the Courts analysis with respect to Lincoln differs slightly from its
analysis with respect to District 1, the Court discusses each defendant separately.
1. Lincoln
Plaintiffs in this case do not have strong evidence of intentional discrimination by
Lincoln. Indeed, the record contains only a single statement by a single teacher at Lincoln that
could be interpreted as reflecting animus against plaintiffs based on their national origin: After
some students circulated a petition criticizing a teacher at Lincoln, another teacher wrote, I am
certain that students would never dare try something like this in their home country, and it
shouldnt be allowed here. Shulman Aff. Ex. KK. This single statement by a single teacher is
not nearly enough for a jury to conclude that Lincoln, as an institution, intentionally
discriminated against plaintiffs.
Indeed, although plaintiffs contend that there is direct evidence of discrimination, their
argument is based almost entirely on evidence of the impact of Lincolns educational system on
plaintiffs. Pl. SJ Opp. at 63-67. Plaintiffs assert, correctly, that Lincoln was intentionally
created . . . to accommodate students who were not native-born. Id. at 64. Plaintiffs then appeal
to the axiomatic proposition that persons intend the consequences of their actions. Id. at 63.
With that proposition in mind, plaintiffs contend:
Since [the Institute] established and operated [Lincoln] only for
immigrant students, but then failed to educate them, [Lincoln] by
design knew and intended that its unlawful conduct would affect
only immigrant, foreign-born students, and not American-born,
non-immigrant students. It created and maintained a substandard
facility and program for immigrants, something [the Institute]
knew would never be permitted for mainstream, non-immigrant
students. Because [the Institute] knew it was dealing with a non-
English speaking immigrant population, the record clearly supports
an inference that [the Institute] believed it could get away with
doing less for this group of immigrants than for a non-immigrant
population. This is the essence of discrimination.
Id. at 64-65.
As this passage makes clear, plaintiffs contend that they were badly educated at Lincoln.
The Court assumes, for summary-judgment purposes, that this is true. But the substandard
education that plaintiffs received is an effect of the educational policies and practices of Lincoln,
and although that effect was felt only by foreign-born students, it does not follow that Lincoln
intentionally discriminated against such students. Put simply, not every disparate impact reveals
discriminatory intent; if it did, the distinction between disparate-impact claims and intentionaldiscrimination
claims would evaporate.
In this case, it is theoretically possible that Lincoln deliberately set out to provide a poor
education to foreign-born students as a way of harming them. There is no evidence of this,
however, and it is at least equally possible that Lincoln educated its students badly as a result of
incompetence, not animus. Incompetence that happens to burden only members of a protected
class is not, by itself, evidence of discriminatory animus.
Suppose, for example, that a former professional baseball player volunteers to coach a
Little League team made up entirely of African-American boys. And suppose further that the
former player an African-American himself turns out to be a terrible coach. The impact of
the terrible coaching would be felt only by African-Americans. But that does not mean that the
former player provided terrible coaching because of animus toward African-Americans. He
might have had positive feelings toward African-Americans and sincerely wanted to help them
indeed, that may have been why he volunteered to coach a team of African-American boys
but simply turned out to be an incompetent coach. Likewise Lincoln may have had positive
feelings toward foreign-born students and sincerely wanted to help them, but simply turned out to
be a substandard school.
Lacking strong evidence of discriminatory intent on Lincolns part, plaintiffs could if
this were an ordinary case rely upon the three-part McDonnell Douglas framework to attempt
to establish that Lincoln intentionally discriminated against them. See McDonnell Douglas, 411
U.S. at 802-03; Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046, 1055 (8th Cir.
2007); Fuller v. Rayburn, 161 F.3d 516, 518 (8th Cir. 1998) (discussing applicability of
McDonnell Douglas in Title VI cases). Under McDonnell Douglas, a plaintiff must first
establish a prima facie case of discrimination. If the plaintiff does so, the defendant has the
burden of coming forward with a legitimate, nondiscriminatory explanation for its challenged
actions. The plaintiff must then put forward sufficient evidence for a jury to find that the
defendants proffered nondiscriminatory explanation is pretextual. See Elnashar, 484 F.3d at
1055; Darke, 550 F. Supp. 2d at 1042.
Plaintiffs cannot, however, establish a prima facie case against Lincoln because of the
unusual facts of this case, as the Court observed in its March 13, 2006 order. Mumid, 2006 WL
640510, at *4 (In this case, it is not possible for similarly situated people to be treated
differently because Plaintiffs allege that all students are members of the same protected class.).
To establish a prima facie case of intentional discrimination, a plaintiff must show that (1) he
belongs to a protected class; (2) he suffered adverse action; and (3) a similarly situated person (or
persons) outside of the protected class called a comparator did not suffer the challenged
adverse action. In this case, with respect to Lincoln, there are no comparators: Lincoln served
only members of the protected class (foreign-born students); it did not serve any students outside
of the protected class.
Given the absence of comparators in this case, the McDonnell Douglas framework cannot
be applied. Indeed, plaintiffs implicitly acknowledge the inapplicability of the McDonnell
Douglas framework by choosing not to rely on it in their brief opposing defendants summaryjudgment
motion. Instead, they argue that a jury could infer discriminatory intent from the fact
that Lincoln provided a substandard education to foreign-born students and no one else. Pl. SJ
Opp. at 63-67. For the reasons already explained, the Court finds that no reasonable jury could
find, based on the record, that discriminatory animus motivated Lincolns actions.
2. District 1
Plaintiffs argue, as they do with respect to Lincoln, that a jury could infer discriminatory
animus on District 1s part from the fact that Lincoln under contract to District 1 provided
a substandard education to a population made up entirely of foreign-born students. Pl. SJ Opp.
at 67. This argument is no stronger with respect to District 1 than with respect to Lincoln. Thus,
for the reasons given above, plaintiffs cannot establish District 1s discriminatory intent by the
direct method of proof.
District 1, however, differs from Lincoln in that District 1 serves both native-born and
foreign-born students. And plaintiffs have evidence that District 1s policy with respect to
testing for special education differed for the two groups of students. Specifically, District 1 had a
general policy of refusing to test foreign-born students for special-education services until they
had been enrolled in ELL classes for three years. Shulman Aff. Ex. A at 9 15. Under the
McDonnell Douglas framework, this policy supports a prima facie case of discrimination:
Plaintiffs are members of a protected class (foreign-born students); that class was subject to
adverse action because its members were denied special-education testing until they had taken
three years of ELL classes; and non-class members (native-born students) did not suffer the
adverse action but rather were offered special-education testing as needed.
District 1 is nonetheless entitled to summary judgment on plaintiffs discrimination claim
with respect to special-education testing for two reasons. First, eleven of thirteen plaintiffs have
no evidence that they personally suffered any injury from District 1s testing policy. Second,
plaintiffs claim does not satisfy the McDonnell Douglas framework because District 1 has
offered a legitimate, nondiscriminatory explanation for its policy and plaintiffs have no evidence
from which a jury could conclude that the explanation is pretextual.
There is no dispute that District 1 had a general policy of refusing to test foreign-born
students for special-education services until the students had taken three years of ELL classes.
But the only students who were injured by policy were those who were in need of testing for
special education. Plaintiffs have offered two types of evidence to support their contention that
all thirteen of them needed special-education testing, but a reasonable jury could conclude from
that evidence that, at most, only two plaintiffs were in need of such testing.
First, plaintiffs point out that one teacher at Lincoln said that four plaintiffs needed
special education. Pl. SJ Opp. at 68; Shulman Aff. Ex. TT. But the teacher did not identify the
particular plaintiffs he had in mind, and in any event, there is no evidence that the teacher knew
what he was talking about that is, there is no evidence that he was qualified to assess specialeducation
needs generally or that he had enough information about the four (unnamed) plaintiffs
to assess their particular needs. Second, plaintiffs point out that two of them Amal Mohamed
and Yurub Siyad were granted accommodations under 504 plans. Pl. SJ Opp. at 69. Such
plans are developed for students with disabilities, and a reasonable jury could find, based on the
existence of those plans, that District 1 should have assessed the needs of these two plaintiffs for
special-education services earlier than it did. But a reasonable jury could not find that any of the
other eleven plaintiffs was deprived of special-education testing that he or she should have
As to the two plaintiffs who may have been harmed, however, there is no evidence that
District 1s explanation for its policy of delaying special-education testing is a pretext for
discrimination. Accordingly, Amal Mohamed and Yurub Siyad, like the other eleven plaintiffs,
cannot prevail on their Title VI claims against District 1.
The evidence shows that District 1 adopted its policy with respect to special-education
testing because it did not believe that it could reliably assess whether a student needed specialeducation
services until the student had been in the country long enough to learn English.
Shulman Aff. Ex. A at 9 15. The wisdom of District 1s policy was doubtful, and the MDE
Also at oral argument, in response 8 to a question from the Court about why only District 1
was named as a defendant on plaintiffs EEOA claims, plaintiffs moved to amend their complaint
to assert EEOA claims against Lincoln and the Institute. Defendants pointed out, however, that
plaintiffs had asserted EEOA claims against the Institute in an earlier version of the complaint
and, after defendants moved to dismiss, plaintiffs amended the complaint to remove those
claims. Accordingly, for several reasons because by its terms 1703 applies only to states;
because defendants dropped EEOA claims after plaintiffs moved to dismiss; because defendants
did not move to amend until the summary-judgment hearing; because amendment would be futile
in light of the Courts ruling on the EEOA claim against District 1 the court denies plaintiffs
oral motion to amend.
required District 1 to abandon the policy because it violated state and federal regulations. Id. at
11-13. But for McDonnell Douglas purposes, the reasons for District 1s policy need not have
been wise; they need only have been sincere (and nondiscriminatory). District 1s explanation is
indeed nondiscriminatory, and plaintiffs have offered no evidence that it is pretextual. Plaintiffs
have thus failed to create a question of fact as to District 1s discriminatory intent.
C. EEOA Claims
Section 1703 of Title 20 of the United States Code, a provision of the EEOA, forbids
states to deny equal educational opportunity to an individual on account of his or her . . .
national origin by engaging in various practices. 20 U.S.C. 1703. Subsection (a) forbids
deliberate segregation and subsection (c) forbids assigning students to schools outside their
neighborhoods if doing so would increase the degree of segregation in the school system. Id.
1703(a), (c). Although Count 4 of plaintiffs second amended complaint raises segregationand
assignment-based claims under 1703(a) and (c), plaintiffs conceded at oral argument that
the evidence does not support either type of claim. Rather, the evidence shows that each plaintiff
chose to attend Lincoln; District 1 did not assign them there or otherwise segregate them. The
Court therefore grants summary judgment to defendant District 1 on Count 4.8
Plaintiffs bring their remaining EEOA claim, in Count 1 of the second amended
complaint, under 1703(f). Section 1703(f) identifies the failure by an educational agency to
take appropriate action to overcome language barriers that impede equal participation by its
students in its instructional programs as a prohibited practice under the EEOA. 20 U.S.C.
1703(f). Put another way, 1703(f) imposes an affirmative obligation on state school systems
to take appropriate action to overcome language barriers . . . . Id.
Whether District 1 took appropriate action to overcome language barriers facing
students at Lincoln is, on the record before the Court, a disputed question of fact. Plaintiffs offer
expert testimony that Lincoln used an English immersion curriculum that was pedagogically
unsound in theory and badly implemented in practice. Inst. Ex. 21. District 1 responds by
criticizing various aspects of plaintiffs expert report. Dist. 1 SJ Mem. at 36-42. The Court
recognizes the force of some of District 1s criticisms, but the Court nonetheless finds that
plaintiffs evidence suffices to create a jury question as to the appropriateness of District 1s
efforts to overcome plaintiffs language barriers.
District 1 is, however, entitled to summary judgment for a different reason: Plaintiffs
injuries, if any, are not redressable by this Court. Plaintiffs seek both injunctive and monetary
relief. But, as is explained below, monetary relief is not available for violations of the EEOA,
and the injunctive relief sought by plaintiffs would do nothing to redress their injuries.
Redressability is an element of standing, which is a prerequisite to this Courts subject-matter
jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Hall v. LHACO, Inc.,
140 F.3d 1190, 1195-96 (8th Cir. 1998). This Court therefore lacks subject-matter jurisdiction
over plaintiffs EEOA claims because plaintiffs lacks standing to bring them.
1. Injunctive Relief
Plaintiffs seek an injunction that would either (1) forbid Lincoln from engaging in any
practices found to be unlawful or (2) shut Lincoln down entirely. Second Am. Compl. at 19-20
D, F [Docket No. 70]. But no plaintiff will ever again be a student at Lincoln. Five plaintiffs
Maymuna Muktar Osman, Mohamed Amal, Yurub Siyad, Amina Harun, and Mohamud
Mohamed have already graduated. The remaining eight plaintiffs are now too old to attend
Lincoln or any other public high school.
Because no plaintiff will ever again attend Lincoln, any injunctive relief requiring Lincoln
to change its practices or shut its doors will have no impact whatsoever on the plaintiffs. By
definition, then, the injunctive relief sought by plaintiffs cannot redress their injuries, and thus
plaintiffs do not have standing to seek that injunction. See City of Los Angeles v. Lyons, 461
U.S. 95, 106 n.7 (1983) (holding that plaintiff lacked standing to seek an injunction against the
Los Angeles police departments choke-hold policy because he could not credibly allege that he
faced a realistic threat from the future application of the policy); see also Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 184-85 (2000) (discussing Lyons).
Plaintiffs therefore lack standing with respect to their claims for injunctive relief (as they
effectively conceded at the summary-judgment hearing).
2. Money Damages
Section 1712 of Title 20 provides that [i]n formulating a remedy for a denial of equal
educational opportunity or a denial of the equal protection of the laws, a court . . . shall seek or
impose only such remedies as are essential to correct particular denials of equal educational
opportunity or equal protection of the laws. 20 U.S.C. 1712. The plain language of this
9It is possible that the equitable remedies of compensatory education or tuition
reimbursement might be available under 1703(f). In cases under the Individual with
Disabilities Education Act (IDEA), 20 U.S.C. 1400-1482, and its predecessor statutes, courts
have held that such remedies are available and, even if they involve the payment of money, are
equitable in nature. Miener v. Missouri, 800 F.2d 749, 754 (8th Cir. 1986) ([T]he plaintiff is
entitled to recover compensatory educational services if she prevails on her claim that the
provision signals that Congress intended to limit the remedies that courts could impose for
violations of the EEOA: Again, courts can impose only such remedies as are essential to
correct a particular violation of the EEOA. Id. (emphasis added). But 1712 provides no
explicit guidance as to whether or when money damages can qualify as an essential remedy.
Plaintiffs appeal to the general principle that when Congress creates a cause of action (as
it has in the EEOA), courts should presume that all remedies are available, including money
damages. Pl. SJ Opp. at 70-71 (quoting Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 66
(1992)). Because Congress did not forbid the award of money damages under the EEOA, argue
plaintiffs, damages must be available in a case like this one, in which an injunction would not
redress the plaintiffs grievances.
Plaintiffs have not, however, cited a single case in which a court awarded money damages
for an EEOA violation. It would be extraordinary if money damages were available under the
EEOA, but, in the thirty-four-year history of the statute, no plaintiff had yet managed to be
awarded such damages. Further, it would be extraordinary if Congress had authorized money
damages under the EEOA given the potential for such awards to bankrupt school districts. In
the absence of any authority for plaintiffs position, and in light of the overall statutory scheme of
the EEOA, the Court declines to become the first federal district court ever to allow a suit for
money damages under the EEOA.9
defendants denied her a free appropriate education in violation of the [Education of the
Handicapped Act, a predecessor or the IDEA].); S.V. v. Sherwood Sch. Dist., 75 F. Supp. 2d
1153, 1157 (D. Or. 1999) (Compensatory education, like retroactive tuition reimbursement,
requires the school district to belatedly pay expenses that it should have paid all along[.] Unlike
tuition reimbursement, however, compensatory education is a prospective remedy that allows a
disabled student to continue education beyond age 21 in order to make up for the earlier
deprivation of a free appropriate public education. Both claims, tuition reimbursement and
compensatory education, are equitable remedies similarly intended to secure a disabled students
right to a free appropriate public education.) (quotations omitted), revd on other grounds, 254
F.3d 877 (9th Cir. 2001).
But plaintiffs have not asked for either compensatory educational services or tuition
reimbursement, nor have they briefed the question whether such remedies are available under the
EEOA. The theoretical availability of such remedies therefore does not provide a basis for the
Court to deny summary judgment.
Awarding money damages under the EEOA would not only be unprecedented, but it
would also be inconsistent with the tenor of the statutes remedy-related provisions. First,
1712 itself authorizes only remedies that are essential to correct a particular violation of the
EEOA. 20 U.S.C. 1712 (emphasis added). Money damages can compensate a person for harm
that she has suffered, but compensating for a wrong is different from correcting it. The word
correct in 1712 suggests that remedies under the EEOA are equitable in nature and are
designed to change specific practices that violate the statute rather than to compensate victims.
Indeed, commentators seem to assume that 1712 authorizes only equitable remedies. See 6
Fed. Proc., L. Ed. 11:407 (West 2008) (The scope of a trial courts equitable powers to
remedy past wrongs in school-desegregation cases is broad, for breadth and flexibility are
inherent in equitable remedies.).
Further, the EEOAs remedy provisions are directed explicitly at equitable remedies such
as busing, not at money damages. Sections 1712 through 1718 of Title 20, enacted as 213 to
10A restrictive relative clause is a clause that, as the name suggests, limits in an
essential way (i.e., restricts) the reach of what it modifies (i.e., what it is relative to). See
Bryan A. Garner, Garners Modern American Usage 782 (2003) (entry on that). By contrast, a
nonrestrictive relative clause provides nonessential information about what it modifies; it is
basically an aside. Id.
Modern grammarians prefer the terms integrated and nonintegrated over the
traditional terms restrictive and nonrestrictive, but the difference is mainly terminological,
not substantive. Rodney Huddleston & Geoffrey K. Pullum, Cambridge Grammar of the English
Language ch. 12 2.2 at 1034-35 (2002) (Integrated relatives are so called because they are
219 of the EEOA, make up the entire Remedies subsection of the EEOA. See Equal
Educational Opportunites Act of 1974, Subpart 4, Pub. L. No. 93-380, 88 Stat. 484, 516-18.
Sections 1713 through 1718 give no hint that money damages are available under the EEOA; to
the contrary, they focus on equitable remedies.
Section 1713, for example, entitled Priority of remedies, requires courts to give
preference to certain types of equitable remedies (e.g., assigning students to nearby schools, 20
U.S.C. 1713(a)-(b)) over others (e.g., constructing magnet schools, 20 U.S.C. 1713(f)). An
award of money damages is not among the remedies listed in 1713, which governs
formulating a remedy for a denial of equal educational opportunity or a denial of the equal
protection of the laws, which may involve directly or indirectly the transportation of
students . . . . 20 U.S.C. 1713.
Unfortunately, the reach of 1713 is not entirely clear, and it likely applies only to certain
remedies those that may involve directly or indirectly the transportation of students . . . . Id.
The reach of 1713 depends on whether the relative clause which may involve directly or
indirectly the transportation of students is a restrictive or nonrestrictive modifier of the noun
remedy.10 That is, does 1713 govern only remedies that may involve directly or indirectly
integrated into the construction containing them. . . . The prototypical integrated relative serves
to restrict the denotation of the head nominal it modifies, and is often referred to by the term
restrictive relative.). One could also use the less formal terms defining (for restrictive or
integrated) and non-defining (for nonrestrictive or nonintegrated). See Kingsley Amis,
The Kings English 226 (St. Martins Griffin 1999).
11See Garner, Garners Modern American Usage 782; Wilson Follett, Modern American
Usage 322 (Jacques Barzun ed., Avenel Books 1980) (entry on that, which).
12Many writers on English usage discourage the use of which to introduce restrictive
relative clauses, advocating instead that which should be used only to introduce nonrestrictive
relative clauses and that that should be used to introduce all restrictive relative clauses. See,
e.g., Garner, Garners Modern American Usage 782-83; Amis, The Kings English 225-27;
Follett, Modern American Usage 321-25; H.W. Fowler, Dictionary of Modern English Usage
625-28 (Ernest Gowers ed., 2d ed. 1965) (entry on that, rel. pron.). There is no doubt,
however, that as a descriptive matter many of the best writers of English prose often use
which to introduce restrictive relative clauses. See Websters Dictionary of English Usage
894-96 (Merriam-Webster 1989) (entry on that); Follett, Modern American Usage 321-25.
There is, however, good reason to prefer using that rather than which to introduce
restrictive relative clauses, as the discussion in the text illustrates: Sometimes it is unclear
whether a which clause is intended to be restrictive or nonrestrictive, particularly when the
clause is preceded by a comma. See Amis, The Kings English 227 (Confusions may arise when
the writer becomes nervous of the length of his defining clause and puts in a pair of commas that
the transportation of students, but not other kinds of remedies (i.e., is the phrase beginning
which may involve restrictive)? Or does 1713 govern any remedy under the EEOA, some of
which may happen to involve the transportation of students (i.e., is the phrase beginning which
may involve nonrestrictive)? Section 1713 is punctuated as if the phrase which may involve
is nonrestrictive the phrase is preceded by a comma, and this is the conventional way of
marking a which clause as nonrestrictive.11 But the remedies listed in 1713 all relate to the
geographic distribution of students and schools, and it therefore makes sense that the listed
remedies would relate only to remedies that (restrictive) may involve the transportation of
make the clause seem like a non-defining one . . . .). Because that cannot be used to introduce
nonrestrictive relative clauses, a that clause is always unambiguously restrictive.
Nonetheless, even if 1713 applies only to remedies that may involve the transportation
of students and not to other remedies, the remaining remedy-related provisions of the EEOA
focus exclusively on equitable remedies, not money damages. Section 1714 is entitled
Transportation of students and governs just that. 20 U.S.C. 1714. Section 1715, titled
District lines, specifies the circumstances under which the boundaries of school districts can be
disregarded in formulating remedies for EEOA violations. 20 U.S.C. 1715. Section 1716
provides that school districts can adopt voluntary desegregation plans. 20 U.S.C. 1716.
Section 1717 allows parents and school districts to challenge busing orders and desegregation
plans if the time or distance of travel for a student is excessive. 20 U.S.C. 1717. And 1718
governs the termination of [a]ny court order requiring, directly or indirectly, the transportation
of students for the purpose of remedying a denial of the equal protection of the laws . . . . 20
U.S.C. 1718.
As noted above, money damages would not correct (but would merely compensate for)
a violation of the EEOA, and therefore the plain text of 1712 does not seem to authorize a
remedy of money damages. This conclusion is reinforced by 1713 through 1718, which
taken with 1712 indicate that Congress intended to authorize only equitable remedies under
the EEOA. Because plaintiffs are entitled to neither money damages nor an injunction, the Court
holds that plaintiffs lack standing to bring their EEOA claims because their injuries, if any, are
not redressable.
D. MFASs Third-Party Complaint
In its third-party complaint, District 1 brings claims of contribution and indemnification
against MFAS, seeking recovery from MFAS for any damages District 1 may be ordered to pay
plaintiffs. MFAS moves for partial summary judgment based on contracts that governed the
relationship between MFAS and District 1. Because the Court grants summary judgment to
Lincoln and District 1 on all of plaintiffs claims, MFASs claims are moot, and the Court
therefore denies MFASs summary-judgment motion.
Based on the foregoing and on all of the files, records, and proceedings herein, IT IS
1. The motion of defendants Abraham Lincoln High School and the Institute for
New Americans for summary judgment [Docket No. 115] is GRANTED.
2. The motion of defendant/third-party plaintiff Special School District No. 1 for
summary judgment [Docket No. 126] is GRANTED.
3. The motion of third-party defendant Metropolitan Federation of Alternative
Schools for partial summary judgment [Docket No. 110] is DENIED AS MOOT.
4. Plaintiffs second amended complaint [Docket No. 70] is DISMISSED WITH
Dated: July 16, 2008 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge


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