Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Georgia A. Staton, Bar #004863 Randall H. Warner, Bar #014695 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7854 [email protected] Attorneys for Defendants Estrella Foothills High School; Henry Schmitt; Eric Godfrey; Jerry Nunez; Marty Arambel; Phillip Echeverria; Jeannie Guy; Jerry Kerr and Gary Mayfield UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Kenneth & Towanda Lyon; Taralyn Lyon, Plaintiffs, v. Estrella Foothills High School; Henry Schmitt, Superintendent of Schools for Estrella Foothills High School; Eric Godfrey; Jerry Nunez; Marty Arambel; Phillip Echeverria; Jeannie Guy; Jerry Kerr and Gary Mayfield, Defendants. RESPONSE TO MOTION FOR NEW TRIAL - and MOTION TO STRIKE EXHIBIT NO. CV 03-2306-PHX-JAT

I.

INTRODUCTION. This case never should have been brought. It is undisputed that Taralyn

Lyons consumed alcohol on campus and received the same punishment as two other girls involved in the same incident. She appealed her suspension all the way to the Arizona Court of Appeals and it was affirmed every step of the way. She had her day in court and then some. Having litigated due process and other constitutional claims in state court, Plaintiff's sole claim at trial was "class of one" discrimination under the equal protection
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clause. Yet after Plaintiff failed to present any evidence from which a jury could find either that she was treated differently from other similarly situated students, or that any difference in treatment was intentional, the Court granted judgment as a matter of law. This ruling was correct. Plaintiff may have offered evidence that she was a good student who should have received leniency. But what she failed to prove was intentional discrimination. The Motion for New Trial must be denied. II. BACKGROUND. It is undisputed that Taralyn Lyon, a student at Estrella Foothills High School, consumed alcohol on campus on November 6, 2002 in violation of District policy. At her request, a formal hearing on that charge was held in accordance with District Policy, and the hearing officer found that Taralyn had consumed alcohol. Taralyn appealed that determination several times: to the School District Board, to Superior Court and ultimately to the Arizona Court of Appeals. At every stage, the finding that she consumed alcohol on campus was affirmed and the punishment was upheld. On this basis, the Court granted summary judgment as to all Section 1983 claims, including the claim that Taralyn's due process rights were violated. The case therefore proceeded to trial solely on a theory of "class of one" discrimination. Following Plaintiff's presentation of the evidence, the Court granted judgment as a matter of law. See Transcript Excerpt (Ex. 1 hereto). The Court ruled that Plaintiff had no evidence she was treated differently from other similarly situated students, or that any difference in treatment was intentional. Id. at 3-4. It also granted Defendants qualified immunity. Id. at 6-7.

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III.

ARGUMENT. A. Plaintiff's Evidence Was Insufficient To Establish "Class Of One" Discrimination. 1. Legal Standard.

Plaintiff first argues that the evidence was sufficient to go to the jury on a "class of one" discrimination theory. "Class of one" discrimination does not occur merely because one person is treated differently from others. As the Supreme Court has noted, "the Fourteenth Amendment guarantees equal laws, not equal results." Personnel Adm'r v. Feeney, 442 U.S. 256, 273 (1979). Rather, Plaintiff had to prove that (1) she was treated different from similarly situated students, (2) the difference was intentional, and (3) there was no rational basis for the difference. Squaw Valley Development Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004). 2. There Was No Evidence That Defendants Treated Taralyn Differently From Other Similarly Situated Students.

Plaintiff offered no evidence at trial that she was treated different from other similarly situated students. The undisputed evidence is that all three girls who consumed alcohol in the same incident received identical 15-day suspensions. What Plaintiff argues instead is that she should have been treated better than the other two students by receiving a lighter punishment. There are two reasons why Plaintiff argues that she should have received leniency. First, Plaintiff argues that she did not intentionally drink alcohol. The District's zero tolerance policy, however, does not require proof of intent. Plaintiff may think this is a bad policy, and reasonable jurors might agree, but the role of the Court in an equal protection case is not to review the wisdom of policies. It is to determine whether discrimination occurred. There is no evidence that it did. Second, Plaintiff argues that she should have received a lighter punishment because she had better grades, was involved in extracurricular activities and was not the
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one who brought the alcohol. This is an argument for unequal treatment, not equal treatment. Under the District's policy, Plaintiff was similarly situated to the other two girls, and therefore was treated the same. Plaintiff points to other students who committed alcohol or drug offenses at various times, but who allegedly received lighter punishments. These incidents are not enough to show discrimination. Plaintiff did not establish that these other students were similarly situated to her. Indeed, most of the students who received 10-day suspensions for drug or alcohol use were not subject to longer suspensions because they either quit school or were expelled. Plaintiff also argues that she received a 20% reduction in her grades, while there was no testimony that any other student received that punishment. She has the burden of proof backwards. It was Plaintiff's burden to prove that other similarly situated students did not receive the same grade reduction. She offered no such evidence. The Court correctly found the evidence insufficient to show Plaintiff was treated differently from similarly situated students. 3. There Was No Evidence That Any Difference In Treatment Was Intentional.

And even if Plaintiff could show that she was treated differently, there was no evidence that this was intentional. This is a key requirement because in any disciplinary system -- whether it involves disciplining students or sentencing criminals -there can be different results over time. This is especially true where, as here, the disciplinary decision involves intangible factors as well as objective factors. One can always examine a series of disciplinary actions and say one person should have been treated differently, but the equal protection clause does not guarantee perfection. It only ensures that someone like Plaintiff is not intentionally singled out for harsher treatment for improper or irrational reasons.

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There was no evidence that any of Defendants made a conscious decision to treat Plaintiff more harshly than other similarly situated students. Nor is there evidence that any of Defendants harbored any personal animosity toward Plaintiff or had any motive for treating her differently. It is true that a plaintiff may state a claim by showing selective enforcement as a pretext for an improper motive. Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995). But there was no evidence here of either pretext or improper motive. Plaintiff argues that the District deviated from its own policy, but there are two defects in that argument. First, it is not an equal protection argument. Even if the District had deviated from its policy (which it did not) that still would not show discrimination. Second, there was no evidence to support this argument. The uncontested evidence at trial was that Plaintiff's punishment was consistent with the District's policy. Plaintiff may not like the way the policy was applied, but that does not show an equal protection violation. Several times in the Motion, Plaintiff repeats that Defendants ignored the frequency of the offense and never informed her of the severity of the accidental consumption of alcohol. Again, this is not an equal protection argument; even if these allegations were true, they would not show discrimination. Moreover, nothing could be further from the facts. The evidence showed that Plaintiff received only a 15-day suspension precisely because it was her first offense, and that the District's policy is very clear about how seriously the District takes alcohol violations. The Court correctly granted judgment as a matter of law as to the class of one equal protection claim.

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B.

Plaintiff Cannot Claim A "Fundamental Right" Equal Protection Violation. In paragraph 11 of the Motion, Plaintiff states that "here we are dealing with

a `fundamental'" right. That is all that Plaintiff says on the subject, so it is not clear whether this is just a passing reference or whether they are arguing for strict scrutiny. See U.S. v. Hancock, 231 F.3d 557, 565 (9th Cir.2000) (strict scrutiny is used for suspect classes or burdens on fundamental rights). Despite the fact that this is not really a developed argument, Defendants will respond. First, Plaintiff has never before asserted a fundamental rights equal protection claim. She did not assert one in the Complaint or in the Joint Pretrial Statement. In fact, in the Joint Pretrial Statement, Plaintiff stipulated that the only issue for trial was "class of one" discrimination. It is too late now to raise a new theory for the first time. Second, public education is not a fundamental right for equal protection purposes. Plyler v. Doe, 457 U.S. 202, 223 (1982). Third, even if Plaintiff's suspension did deprive her of a fundamental right to education, strict scrutiny does not apply any time government deprives a citizen of a fundamental right. Were that the case, every criminal sentencing -- which deprives the convict of his or her liberty -- would be subject to strict scrutiny. See, e.g., United States v. Thomas, 900 F.2d 37, 39 (4th Cir. 1990) (where sentencing statute did not discriminate based on the exercise of a fundamental right, review of sentencing was subject to rational basis review); In re Ramsey, 9 P.3d 231, 234 (Wash. App. 2000) (applying rational basis review to equal protection challenge to reduction of sentence). Rather, it only applies when there is discrimination based on the exercise of a fundamental right. Plaintiff was not treated differently from anyone else based on her exercise of a fundamental right.

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C.

Defendants Are Entitled To Qualified Immunity. Plaintiff next argues that Defendants were not entitled to qualified

immunity. The Court need not reach this issue because the lack of an equal protection violation defeats Plaintiff's claim. Nonetheless, even if there were an equal protection violation, there is no evidence that any of Defendants knowingly violated Plaintiff's constitutional rights. Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law"). None of the Defendants had any reason to believe that suspending three students for 15 days for consuming alcohol would violate the equal protection rights of one of them. D. Plaintiff Cannot Assert A Substantive Due Process Claim. Plaintiff also asks the Court to revisit its grant of summary judgment on the due process claim. Although she has at various times argued procedural due process, she now characterizes the claim as substantive due process because she is challenging the District's decision as arbitrary. The Court granted summary judgment on due process based on res judicata. See 8/30/05 Order at 7-12 (Ex. 2 hereto). The Court concluded that Plaintiff, in her state court special action, challenged the punishment on due process grounds. This ruling was correct. The entire purpose of the special action was to challenge both the procedure by which Plaintiff was suspended and the basis for the suspension. Having lost once, Plaintiff does not get a second chance in this separate lawsuit. Plaintiff may say she is now arguing substantive due process instead of procedural process, so the state court lawsuit is not preclusive. The argument Plaintiff makes in the Motion for New Trial, however, is no different from the argument she made to the Superior Court. There, she argued: Nothing in the record warrants this type of treatment for "sipping" a bottle of unknown liquid. The action of Defendant is arbitrary and capricious; it is not founded in law or fact.
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See Opening Brief in Special Action at xiv (Ex. 3 hereto). Here, Plaintiff argues that her suspension was arbitrary because "Defendants did not consider the fact that there was no alcohol in the system of Plaintiff, she did not know what was in the bottle." See Motion at ¶ 48. It is the same argument. Moreover, even if Plaintiff's due process argument in this Court were different from the due process argument she made in state court, res judicata still would apply. Claim preclusion bars not only those claims that were litigated, but those that could have been raised. Gilbert v. Board of Medical Examiners, 155 Ariz. 169, 174, 745 P.2d 617, 622 (App. 1987). There is no reason why Plaintiff could not have argued substantive due process before the Superior Court. III. MOTION TO STRIKE. Attached to the Motion as "Attachment A" is a purported e-mail from Juror No. 3 stating how he would have voted had he had the chance. The e-mail should be stricken and the Court should not consider it. For one, it is hearsay. Moreover, what one juror thought about the case has no bearing on the propriety of the Court's legal ruling. Cf. Fed. R. Evid. 606(b) (barring juror statements offered to impeach the verdict). IV. CONCLUSION. For the foregoing reasons, Defendants request that the Court deny the Motion for New Trial and strike Attachment A. DATED this 1st day of August, 2006. JONES, SKELTON & HOCHULI, P.L.C.

BY

s/Randall H. Warner Georgia A. Staton Randall H. Warner 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants

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Original e-filed andstcopies of the foregoing mailed this 1 day of August, 2006 to: Hon. James A. Teilborg United States District Court Sandra Day O'Connor U.S. Courthouse Suite 523 401 West Washington Street, SPC 51 Phoenix, AZ 85003-2154 602-322-7560 Joseph E. Collins, Esq. 10801 North 32nd Street Suite 3 Phoenix, AZ 85028 Attorney for Plaintiff s/Gloria Gray

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