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Judge: 3 Black students can’t claim racism damages under Davis schools Justice Department case

By Mark Shenefelt - | Dec 14, 2022

BEN DORGER, Standard-Examiner file photo

The United States Courthouse in Salt Lake City is pictured Wednesday, Jan. 30, 2019.

FARMINGTON -- A judge has ruled that three Black students claiming persistent racism against them cannot collect damages from the Davis School District's alleged noncompliance with a Justice Department discrimination settlement.

Parents of the three, all students at North Layton Junior High School, filed the civil rights suit alleging the children were subjected to ongoing racist taunts and other abuse in 2021 and this year and that school personnel allegedly failed to adequately punish offenders, looked the other way or penalized the Black students. The parents are Nicole Sieger, Alonzo and Lisa Liddell, and Kimberly Olsen.

The suit alleged that the abuse happened even in the wake of the district's September 2021 settlement with the Justice Department that called for a sweeping program to confront racial harassment and discrimination throughout the district.

The three students, according to the suit, suffered unimpeded, daily harassment that included being called "cotton picker," the N-word, "monkey," and "Poo‐Skin"; hearing students make "monkey" sounds toward them on the bus and at school; being informed that Black History Month was being cut short; having other students touch their hair without permission; and hearing students ask for an "N‐word pass" so students could freely use racially derogatory expletives toward them. The students said they were told that "white people are better," "you're a slave" and to "go back to where you came from."

U.S. District Judge Dale Kimball said in a memorandum decision filed Tuesday in Salt Lake City that third parties, such as the three students, were not intended in the settlement to be direct beneficiaries of the program. The suit accused the school district of breaching the contract with the Justice Department.

"Recognizing a third‐party beneficiary status for individual students would open the door for each individual Black or Asian American student to bring an individual breach of contract claim, even if there were no harm to them," the judge wrote.

Kimball said the settlement agreement has exhaustive requirements and timelines that the district must meet and that the agencies are required to work together in good faith. He said his reading of the settlement shows that the Justice Department and the school district explicitly intended the agreement to be a resolution of the issues between them and that they "intended to exclude any third parties from enforcing it."

District officials and attorneys representing the district have denied that the district has not been complying with the settlement. They also have disputed the allegations in the suit, and attorneys filed a motion asking Kimball to dismiss the case.

Earlier this year, district officials detailed steps being taken to comply with the federal settlement.

A district statement said the 9,800 employees at the district's 92 schools are receiving "constant training," approved by the Justice Department, "to prevent and address racial harassment and discriminatory discipline."

Further, the district has hired a third-party consultant approved by the federal agency to help the district on its new programs; hired a new assistant district superintendent to focus on diversity and equity issues; and created an equal opportunity office to investigate and resolve racial discrimination and harassment complaints.

The district as well has entered into partnerships with Hill Air Force Base leaders, the Davis County Commission, Utah First Lady Abby Cox and interfaith leaders to work on efforts to increase inclusion and end discrimination and racism.

In all schools, a "No More, Not Here" campaign is targeting all forms of bullying and harassment, the district said.

The district in addition said it is on schedule to meet timelines set out in the settlement regarding reporting on district policies and practices and other matters.

Although Kimball dismissed the three students' breach-of-contract claim, he denied the district's motion to dismiss the suit's two other causes of action: that the district and employees at the junior high school intentionally discriminated against the three students in violation of Title VI of the 1964 Civil Rights Act; and that the district deprived the students of their rights and privileges secured by the Equal Protection Clause of the 14th Amendment.

Those elements of dispute will now head toward trial or other settlement.

In response to an inquiry about Kimball's ruling, the school district released the following statement Wednesday:

"The Davis School District is committed to build and maintain a culture in each of its schools where every student -- regardless of their race, religion, gender, background, disability or identity -- can thrive and succeed in an outstanding educational environment free from any form of discrimination."

Efforts to reach Bradley Bearnson, the students' attorney, were not immediately successful.

The two-year Justice Department investigation found "serious and widespread racial harassment" of Black and Asian-American students in district schools. The department's Civil Rights Division cited persistent failures to respond to reports of race-based harassment by district staff and other students. The investigation began in 2019 and covered the period of 2015-2020.

In November 2021, 10-year-old Foxboro Elementary student Izzy Tichenor died of suicide after her mother said bullying that was ignored by school personnel. Izzy was Black and autistic. School officials later gave condolences and pledged to improve handling of bullying reports.

An attorney for Tichenor's family filed a $14.5 million damages claim against the district last month.

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