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K.S-A v. Hawaii School District

United States District Court, D. Hawaii

December 18, 2017

K.S-A, a minor and J.S-A, a minor by and through Joshua Douglas Franklin, as their Guardian Ad Litem Plaintiffs,
v.
Hawaii School District Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT FILED ON AUGUST 22, 2017

          Alan C. Kay, Sr. United States District Judge.

         For the reasons set forth below, the Court GRANTS Defendant's Motion to Dismiss First Amended Complaint Filed on August 22, 2017, ECF No. 73. The Court dismisses the First Amended Complaint WITHOUT PREJUDICE.

         PROCEDURAL BACKGROUND

         On March 15, 2016, Plaintiffs K.S-A, a Native Hawaiian minor child aged 10 years old, and J.S-A, a Native Hawaiian minor child aged nine years old (“Plaintiffs”), by and through Joshua Douglas Franklin, their biological father, as their Guardian Ad Litem filed a Complaint against Hawaii School District, Hilo-Waiakea Complex, Brad Bennett, and Erin Williams.[1] ECF No. 1. On the same date, Plaintiffs also filed a Motion to Appoint Guardian Ad Litem. ECF No. 6. On March 23, 2016, Magistrate Judge Barry M. Kurren granted that Motion. ECF No. 23. On May 13, 2016, Hawaii School District, Hilo-Waiakea Complex, Brad Bennett, and Erin Williams filed an Answer to the Complaint. ECF No. 33.

         On July 7, 2017, Plaintiffs filed a Motion to Amend the Complaint, ECF No. 66, which Magistrate Judge Kenneth Mansfield[2] granted on August 21, 2017.[3] ECF No. 71. On August 22, 2017, Plaintiffs filed their First Amended Complaint (“FAC”) solely against Defendant Hawaii School District. ECF No. 72. On September 1, 2017, Defendant filed a Motion to Dismiss First Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (“Motion”). ECF No. 73. On November 22, 2017, Plaintiffs filed an Opposition to Defendant's Motion to Dismiss (“Opposition”). ECF No. 90. On December 4, 2017, Defendant filed a Reply to Plaintiffs' Opposition (“Reply”). ECF No. 92.[4] The Court held a hearing on Defendant's Motion to Dismiss on December 18, 2017.[5]

         FACTUAL BACKGROUND

         The FAC alleges that Plaintiffs were enrolled at public schools within the Hawaii School District, which receive federal funding as contemplated by Title IX, 20 U.S.C. § 1681. FAC ¶ 9. Plaintiffs further allege that they are perceived by other students to be gay or bisexual or to identify with being gay or bisexual. Id. ¶ 2. Since 2012, Plaintiffs have been subjected to ongoing pervasive harassment in Hawaii public elementary schools on the basis of their perceived sexual orientation and the failure to conform to gender stereotypes. Id. ¶ 8. Specifically, Plaintiffs have been subjected to a constant stream of verbal abuse and harassment from other students, being called a number of slurs related to their sexuality. Id. ¶ 11.

         Plaintiffs allege that this persistent harassment is often committed in the presence of Defendant's administrators, teachers, and counselors who fail to take appropriate required action and instead minimize the harassment as mere name-calling. Id. ¶ 13. The FAC discusses in detail incidents that exemplify this behavior. See id. ¶¶ 14-20. In addition to this harassment, Plaintiffs have been subjected to physical violence. Id. ¶¶ 22-23.

         Because of this conduct, Plaintiffs' father removed Plaintiffs from several schools on the Island of Hawaii. See id. ¶¶ 29, 34-36, 38. Before and after removing Plaintiffs from the schools at issue, Plaintiffs' father filed numerous complaints about teachers and administrators with Defendant. Id. ¶ 39. Plaintiffs allege that Defendant has failed to investigate these complaints and take action against teachers and administrators who are the subject of them. Id. Defendant has also denied Plaintiffs' father geographic exemptions for his children in retaliation for his complaints about teachers and administrators. Id. ¶ 41.

         Based on the aforementioned allegations, and others, Plaintiffs allege claims for violations of: (1) civil rights under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a); (2) 42 U.S.C. § 1983 based on Plaintiffs' equal protection rights; (3) right to privacy; and (4) negligent infliction of emotional distress. Id. ¶¶ 44-92.

         Most importantly, as related to this Motion, Plaintiffs allege that Hawaii School District is part of a state-wide education system, which is divided into seven Districts. Id. ¶ 3. Each District is subdivided into Complex Areas, which are further divided into at least one complex that each comprise an elementary and middle school that feed into a high school. Id. ¶ 3.

         STANDARD

         I. Rule 12(b)(1)

         Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss a complaint based on a lack of subject matter jurisdiction. “[T]he party asserting subject matter jurisdiction has the burden of proving its existence.” Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009) (citation omitted).

         A jurisdictional attack may be either facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. “In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Id.

         II. ...


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