Case: 3:06-cv-3007 As of: 09/23/2017 06:27 PM CDT 1 of 12
U.S. District Court District of South Dakota (Central Division) CIVIL DOCKET FOR CASE #: 3:06−cv−03007−CBK

CLOSED

Antoine et al v. Winner School District 59−2 et al Assigned to: U.S. District Judge Charles B. Kornmann Cause: 42:1983 Civil Rights Act − Civil Action for Deprivation of Rights
Plaintiff

Date Filed: 03/27/2006 Date Terminated: 12/10/2007 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Sam Antoine a minor, by and through Lavina Milk, his legal guardian TERMINATED: 04/28/2014

represented by Catherine Yonsoo Kim ACLU (New York, NY) 125 Broad Street, 18th Floor New York, NY 10004−2400 (212) 549−2682 Fax: (212) 549−2651 Email: ckim@aclu.org TERMINATED: 12/20/2013 LEAD ATTORNEY

Dana Hanna Hanna Law Office, P.C. P.O. Box 3080 629 Quincy Street, #105 Rapid City, SD 57709 (605) 791−1832 Fax: (605) 791−1834 Email: dhanna@midconetwork.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robin Lee Dahlberg American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 (212) 549−2602 Fax: (212) 549−2651 Email: rdahlberg@aclu.org TERMINATED: 12/20/2013 LEAD ATTORNEY

Stephen L. Pevar ACLU Foundation (Hartford, CT) 765 Asylum Avenue Hartford, CT 06105 (860) 570−9830 Fax: (860) 570−9840 Email: pevaraclu@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney A. Bowie American Civil Liberties Union of South Dakota PO Box 1170 Sioux Falls, SD 57101 (201) 284−9500 Fax: (605) 332−5648 Email: cbowie@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

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Plaintiff Richard Chasing Hawk a minor, by and through Rose Mendoza, his legal guardian TERMINATED: 04/28/2014
Plaintiff Charles Dubray TERMINATED: 04/28/2014
Plaintiff Mindi Felix a minor, by and through Donna Eisenbraun, her mother. TERMINATED: 04/28/2014

represented by Catherine Yonsoo Kim (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY
Dana Hanna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robin Lee Dahlberg (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY
Stephen L. Pevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Courtney A. Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Catherine Yonsoo Kim (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY
Dana Hanna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robin Lee Dahlberg (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY
Stephen L. Pevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Courtney A. Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Catherine Yonsoo Kim (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY
Dana Hanna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff Jesse Milk a minor, by and through Joanne Bates, his mother. TERMINATED: 04/28/2014
Plaintiff Deidrick Old Lodge a minor, by and throughYvette Iron Heart, his mother. TERMINATED: 04/28/2014

Robin Lee Dahlberg (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY
Stephen L. Pevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Courtney A. Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Catherine Yonsoo Kim (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY
Dana Hanna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robin Lee Dahlberg (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY
Stephen L. Pevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Courtney A. Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Catherine Yonsoo Kim (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY
Dana Hanna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robin Lee Dahlberg (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY
Stephen L. Pevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Courtney A. Bowie

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(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Jennifer Peneaux TERMINATED: 04/28/2014

represented by Catherine Yonsoo Kim (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY

Dana Hanna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robin Lee Dahlberg (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY

Stephen L. Pevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney A. Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Johnathon Scruggs a minor, by and through Christine Rinker, his mother. TERMINATED: 04/28/2014

represented by Catherine Yonsoo Kim (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY

Dana Hanna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robin Lee Dahlberg (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY

Stephen L. Pevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney A. Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Josephine Traversie a minor, by and through Regina Traversie−LaPointe, her mother. TERMINATED: 04/28/2014

represented by Catherine Yonsoo Kim (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY

Dana Hanna

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(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robin Lee Dahlberg (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY

Stephen L. Pevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney A. Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Taylor White Buffalo a minor, by and through Dale and Beatrice White Buffalo, his parents; and all others similarly situated TERMINATED: 04/28/2014

represented by Catherine Yonsoo Kim (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY
Dana Hanna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robin Lee Dahlberg (See above for address) TERMINATED: 12/20/2013 LEAD ATTORNEY

Stephen L. Pevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney A. Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Yvette Iron Heart mother, and all others similarly situated Minor W.I.H. Minor J.I.H.

represented by Dana Hanna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen L. Pevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney A. Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V.

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Defendant Winner School District 59−2

represented by Donald P. Knudsen Gunderson, Palmer, Nelson & Ashmore, LLP 506 Sixth Street PO Box 8045 Rapid City, SD 57709−8045 (605) 342−1078 Fax: (605) 342−0480 Email: dknudsen@gpnalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer K. Trucano Gunderson, Palmer, Goodsell & Nelson, LLP PO Box 8045 Rapid City, SD 57709−8045 342−1078 Fax: 342−9503 Email: jtrucano@gpnalaw.com TERMINATED: 06/01/2017

Sara Frankenstein Gunderson, Palmer, Nelson & Ashmore, LLP 506 Sixth Street PO Box 8045 Rapid City, SD 57709−8045 (605) 342−1078 Fax: (605) 342−0480 Email: sfrankenstein@gpnalaw.com ATTORNEY TO BE NOTICED

Defendant
Bruce Carrier in his Official Capacity as Superintendent of Winner School District

represented by Donald P. Knudsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer K. Trucano (See above for address) TERMINATED: 06/01/2017

Sara Frankenstein (See above for address) ATTORNEY TO BE NOTICED

Defendant
Brian Naasz Individually and in his Official Capacity as Principal of Winner Middle School

represented by Donald P. Knudsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer K. Trucano (See above for address) TERMINATED: 06/01/2017

Sara Frankenstein (See above for address) ATTORNEY TO BE NOTICED

Defendant

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Gerald Witte in his Official Capacity as Principal of Winner High School

represented by Donald P. Knudsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer K. Trucano (See above for address) TERMINATED: 06/01/2017

Sara Frankenstein (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/27/2006
03/27/2006 03/27/2006 03/29/2006 03/30/2006 04/04/2006
04/04/2006
04/04/2006
04/04/2006
04/04/2006 04/17/2006
04/17/2006
04/18/2006

# Docket Text
1 COMPLAINT Receipt Number SDX300000202 in the amount of $ 250, filed by Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Sam Antoine, Richard Chasing Hawk, Charles Dubray.(SRN, ) (Entered: 03/27/2006)
2 CIVIL COVER SHEET (SRN, ) (Entered: 03/27/2006)
Filer will mail the summons form back and inform the clerk's office of the number they need. (SRN, ) (Entered: 03/27/2006)
3 NOTICE of Appearance by Donald P. Knudsen on behalf of all defendants (Knudsen, Donald) (Entered: 03/29/2006)
4 Summons Issued as to Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson. (SRN, ) (Entered: 03/30/2006)
5 SUMMONS Returned Executed by Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Sam Antoine, Richard Chasing Hawk, Charles Dubray. Winner School District 59−2 served on 3/31/2006, answer due 4/20/2006. (SRN) (Entered: 04/04/2006)
6 SUMMONS Returned Executed by Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Sam Antoine, Richard Chasing Hawk, Charles Dubray. Mike Hanson served on 3/31/2006, answer due 4/20/2006. (SRN, ) (Entered: 04/04/2006)
7 SUMMONS Returned Executed by Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Sam Antoine, Richard Chasing Hawk, Charles Dubray. Mary Fisher served on 3/31/2006, answer due 4/20/2006. (SRN, ) (Entered: 04/04/2006)
8 SUMMONS Returned Executed by Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Sam Antoine, Richard Chasing Hawk, Charles Dubray. Brian Naasz served on 3/31/2006, answer due 4/20/2006. (SRN, ) (Entered: 04/04/2006)
SUMMONS (Defendant(s)) Served (SRN, ) (Entered: 04/04/2006)
9 MOTION for attorney Catherine Kim to Appear Pro Hac Vice by Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Sam Antoine, Richard Chasing Hawk, Charles Dubray. (Attachments: # 1 Text of Proposed Order)(JAB) (Entered: 04/17/2006)
10 MOTION for attorney Robin Dahlberg to Appear Pro Hac Vice by Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Sam Antoine, Richard Chasing Hawk, Charles Dubray. (Attachments: # 1 Text of Proposed Order)(JAB) (Entered: 04/17/2006)
11 ORDER TO ADMIT PRO HAC VICE granting 9 Motion for Attorney Catherine Kim to appear Pro Hac Vice, granting 10 Motion for Attorney Robin Dahlberg to appear Pro Hac Vice. Signed by Judge Charles B. Kornmann on 4/18/06. (JAB) (Entered: 04/18/2006)

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04/20/2006 04/21/2006 04/21/2006 04/24/2006 04/28/2006
04/28/2006
05/05/2006
05/05/2006
05/10/2006 05/12/2006
05/22/2006 05/22/2006 06/01/2006 06/01/2006 06/02/2006 06/02/2006
06/08/2006 07/26/2006 10/20/2006

13 ANSWER to Complaint with Jury Demand by Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson.(Knudsen, Donald) (Entered: 04/20/2006)
14 ORDER For Form 35 Report and Scheduling Information. Signed by Judge Charles B. Kornmann on 4/21/06. (JAB) (Entered: 04/21/2006)
16 MEMORANDUM LETTER re: instructions for future filingsSigned by Judge Charles B. Kornmann on April 21, 2006. (DLC) (Entered: 04/24/2006)
17 PRO HAC VICE fee paid by Catherine Y. Kim and Robin L. Dahlberg (SLL, ) (Entered: 04/24/2006)
18 MOTION for Class Certification by Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Sam Antoine, Richard Chasing Hawk, Charles Dubray. (Attachments: # 1 Text of Proposed Order)(JAB) (Entered: 04/28/2006)
19 MEMORANDUM OF LAW in Support of 18 MOTION for Class Certification filed by Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Sam Antoine, Richard Chasing Hawk, Charles Dubray. (JAB) (Entered: 04/28/2006)
20 NOTICE of Appearance by Catherine Yonsoo Kim on behalf of Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Sam Antoine, Richard Chasing Hawk, Charles Dubray (DLC) (Entered: 05/05/2006)
21 NOTICE of Appearance by Robin Lee Dahlberg on behalf of Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Sam Antoine, Richard Chasing Hawk, Charles Dubray (DLC) (Entered: 05/05/2006)
22 AMENDED ANSWER to 1 Complaint, by Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson. (Knudsen, Donald) (Entered: 05/10/2006)
23 CORRECTED COMPLAINT , filed by Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Sam Antoine, Richard Chasing Hawk, Charles Dubray. (Attachments: # 1 Letter)(SRN, ) (Entered: 05/12/2006)
24 NOTICE of Appearance by Sara Frankenstein on behalf of Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson (Frankenstein, Sara) (Entered: 05/22/2006)
25 RESPONSE to Motion re 18 MOTION for Leave to for Class Certification filed by Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson. (Frankenstein, Sara) (Entered: 05/22/2006)
26 REPORT of Rule 26(f) Planning Meeting. (Frankenstein, Sara) (Entered: 06/01/2006)
27 MOTION to Amend/Correct 22 Amended Answer to Complaint by Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson. (Attachments: # 1 Second Amended Answer)(Frankenstein, Sara) (Entered: 06/01/2006)
28 ORDER granting 27 Motion to Amend Answer. Signed by Judge Charles B. Kornmann on June 2, 2006. (DLC) (Entered: 06/02/2006)
29 RULE 16 SCHEDULING ORDER: Discovery due by 2/16/2007. Motions due by 3/19/2007. Pretrial Conference and Motions Hearing set for 6/1/2007 at 1:00 PM in PR Courtroom 1 before Charles B. Kornmann. Signed by Judge Charles B. Kornmann on June 2, 2006. (DLC) (Entered: 06/02/2006)
31 Second Amended ANSWER to Amended Complaint by Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson.(Frankenstein, Sara) (Entered: 06/08/2006)
32 MEMORANDUM LETTER re: class action Signed by Judge Charles B. Kornmann on 7/26/06. (SRN, ) (Entered: 07/27/2006)
33 ORDER AND OPINION GRANTING CLASS CERTIFICATION 18 . Signed by Judge Charles B. Kornmann on October 19, 2006. (DLC) (Entered: 10/20/2006)

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11/16/2006 11/16/2006 11/16/2006 11/16/2006
11/16/2006 11/21/2006 11/27/2006
12/15/2006 12/15/2006 01/04/2007
01/05/2007 01/08/2007 04/11/2007
05/22/2007 05/23/2007 05/24/2007 05/30/2007 07/12/2007

35 First MOTION to Compel Discovery and Extend Discovery Deadlines by Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson. (Knudsen, Donald) (Entered: 11/16/2006)
36 MOTION to Extend by Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson. (Frankenstein, Sara) (Entered: 11/16/2006)
37 MEMORANDUM in Support re 36 MOTION to Extend filed by Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson. (Frankenstein, Sara) (Entered: 11/16/2006)
38 MEMORANDUM in Support re 35 First MOTION to Compel Discovery and Extend Discovery Deadlines filed by Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson. (Attachments: # 1 Exhibit A − May 31, 2006, correspondence# 2 Exhibit B − Defendants' discovery responses)(Knudsen, Donald) (Entered: 11/16/2006)
39 PROPOSED ORDER by Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson re 35 First MOTION to Compel Discovery and Extend Discovery Deadlines. (Knudsen, Donald) (Entered: 11/16/2006)
40 ORDER Granting 35 Motion to Compel and Granting 36 Motion to Extend Filing Deadlines. Signed by Judge Charles B. Kornmann on 11/21/06. (SRN, ) (Entered: 11/22/2006)
42 AMENDED RULE 16 SCHEDULING ORDER: Discovery due by 9/17/2007. Motions due by 10/17/2007. Pretrial Conference set for 1/11/2008 at 01:30 PM in Aberdeen Courtroom before Charles B. Kornmann. Signed by Judge Charles B. Kornmann on 11/27/06. (SRN, ) (Entered: 11/27/2006)
44 Second MOTION to Amend/Correct Answer by Winner School District 59−2. (Attachments: # 1 Exhibit Exhibit A − Third Amended Answer)(Frankenstein, Sara) (Entered: 12/15/2006)
45 MEMORANDUM in Support re 44 Second MOTION to Amend/Correct Answer filed by Winner School District 59−2. (Attachments: # 1 Exhibit Exhibit A − Copy of Webb v. Pennington County et al)(Frankenstein, Sara) (Entered: 12/15/2006)
46 RESPONSE to Motion re 44 Second MOTION to Amend/Correct Answer filed by Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Sam Antoine, Richard Chasing Hawk, Charles Dubray. (JAB) (Entered: 01/04/2007)
47 ORDER granting 44 Motion to Amend Signed by Judge Charles B. Kornmann on 1/5/07. (JAB) (Entered: 01/05/2007)
49 Third Amended ANSWER to Amended Complaint by Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson.(Frankenstein, Sara) (Entered: 01/08/2007)
50 JOINT STIPULATION REGARDING CONFIDENTIALITY OF DISCOVERY by Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Sam Antoine, Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson, Richard Chasing Hawk, Charles Dubray. (DJP) (Entered: 04/11/2007)
Settlement Conference held on Tuesday, 5/22/2007 before Judge John E. Simko. Mediation to continue on Wednesday, 5/23/2007. (CG) (Entered: 05/23/2007)
Settlement Conference held on 5/23/2007 before Judge John E. Simko (to be continued on 5/24/2007). (CG) (Entered: 05/24/2007)
Settlement Conference concluded on 5/24/2007 before Judge John E. Simko. (Court Reporter FTR Ct #2) (CG) (Entered: 05/24/2007)
51 Sealed Document (Settlement Agreement reached during mediation held May 22−24). (DJP) (Entered: 05/30/2007)
52 MOTION Order Directing Notice to the Class of the Proposed Consent Decree and Scheduling a Fairness Hearing by Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Sam

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10/04/2007 10/04/2007 10/05/2007 10/05/2007
10/16/2007
12/06/2007 12/06/2007 12/06/2007 12/06/2007 12/06/2007 12/06/2007 12/10/2007 12/10/2007 12/14/2007 06/02/2008
06/03/2008
09/10/2008

Antoine, Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson, Richard Chasing Hawk, Charles Dubray. (Attachments: # 1 Exhibit A: Consent Decree# 2 Exhibit B: Notice of Proposed Settlement of School − Discrimination Lawsuit# 3 Proposed Order)(MWT) (Entered: 07/12/2007)
53 ORDER fairness hearing re for October 17, 2007 at 9:00 am in Pierre Signed by Judge Charles B. Kornmann on 10/4/07. (JAB) (Entered: 10/05/2007)
Set/Reset Hearings: fairness hearing set for 10/17/2007 at 09:00 AM in PR Courtroom 1 before Charles B. Kornmann. (JAB) (Entered: 10/05/2007)
54 ORDER VACATING ORDER FOR FAIRNESS HEARING re vacating 53 Order Signed by Judge Charles B. Kornmann on 10/5/07. (JAB) (Entered: 10/05/2007)
55 ORDER DIRECTING NOTICE TO THE CLASS OF THE PROPOSED CONSENT DECREE AND SCHEDULING A FINAL FAIRNESS HEARING Hearings Set Fairness Hearing set for 12/10/2007 at 02:00 PM in PR Courtroom 1 before Charles B. Kornmann. Signed by Judge Charles B. Kornmann on 10/5/07. (JAB) (Entered: 10/05/2007)
56 NOTICE OF PROPOSED SETTLEMENT by Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Sam Antoine, Richard Chasing Hawk, Charles Dubray (DLC) (Entered: 10/16/2007)
57 AFFIDAVIT of Marilyn Herman. (Knudsen, Donald) (Entered: 12/06/2007)
58 AFFIDAVIT of Diz Herman. (Knudsen, Donald) (Entered: 12/06/2007)
59 AFFIDAVIT of Bill J. Kaiser. (Knudsen, Donald) (Entered: 12/06/2007)
60 AFFIDAVIT of Sonya Hespe. (Attachments: # 1 Exhibit List of students, parents and guardians)(Knudsen, Donald) (Entered: 12/06/2007)
61 AFFIDAVIT of Cathy Ducheneaux. (Knudsen, Donald) (Entered: 12/06/2007)
62 AFFIDAVIT of Cathy Ducheneaux. (Attachments: # 1 Exhibit List of students, parents and guardians)(Knudsen, Donald) (Entered: 12/06/2007)
63 Fairness Hearing held on 12/10/2007 before Judge Charles B. Kornmann (Court Reporter Cheryl Hook) (SRN) (Entered: 12/10/2007)
64 CONSENT DECREE. Signed by Judge Charles B. Kornmann on 12/10/07. (SRN) (Entered: 12/10/2007)
65 TRANSCRIPT of Fairness Hearing Proceedings: re 63 held on December 10, 2007 (JAB) (Entered: 12/14/2007)
66 STATUS REPORT by Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson. (Attachments: # 1 Progress Report #1, # 2 Exhibit A − Draft Disciplinary Matrix dated April 14, 2008, # 3 Exhibit B − Paraprofessional Contract with DeAnne Felix, # 4 Exhibit C − List of Olweus Bullying Prevention Coordinating Committee members, # 5 Exhibit D − Paraprofessional Contract with Ralph Wendell, # 6 Exhibit E − Materials and notes from first co−construction team)(Frankenstein, Sara) (Entered: 06/02/2008)
67 NOTICE of Appearance by Jennifer Kay Trucano on behalf of Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson (Trucano, Jennifer) (Entered: 06/03/2008)
68 STATUS REPORT by Winner School District 59−2, Mary Fisher, Brian Naasz, Mike Hanson. (Attachments: # 1 Progress Report #1 for Year 2, 2008−09, # 2 Exhibit A − Disciplinary Matrix revised August 12, 2008, # 3 Exhibit B − Infinite Campus Flags, # 4 Exhibit C − Ombudsperson Job Description, # 5 Exhibit D − Ombudsperson Job Description(2), # 6 Exhibit E − Teacher's Contract, # 7 Exhibit F − Parental Involvement, # 8 Exhibit G − Accountability Plan)(Trucano, Jennifer) (Entered: 09/10/2008)

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12/19/2013 12/20/2013 01/08/2014
01/09/2014 01/09/2014 01/22/2014 03/17/2014 04/01/2014 04/10/2014 04/18/2014 04/28/2014 04/29/2014 11/03/2014
11/04/2014

69 MOTION for Attorney Courtney A. Bowie to be Admitted Pro Hac Vice (paid $100 PHV fee; receipt number 0869−1730054) by Sam Antoine, Richard Chasing Hawk, Charles Dubray, Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo. (Attachments: # 1 Text of Proposed Order Proposed Order)(Pevar, Stephen) (Entered: 12/19/2013)
70 ORDER TO ADMIT PRO HAC VICE granting 69 Motion for Admission Pro Hac Vice of Attorney Courtney A. Bowie for Sam Antoine, Richard Chasing Hawk, Charles Dubray, Mindi Felix, Jesse Milk, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, and Taylor White Buffalo. Signed by Charles B. Kornmann on 12/20/2013. (SAT) (Entered: 12/20/2013)
71 Joint MOTION for Order to Direct Notice to Class of Proposed Amended Consent Decree and Schedule Fairness Hearing re 64 Order on Motion for Miscellaneous Relief by Sam Antoine, Richard Chasing Hawk, Charles Dubray, Mindi Felix, Mary Fisher, Mike Hanson, Jesse Milk, Brian Naasz, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Winner School District 59−2. (Attachments: # 1 Exhibit A −Proposed Notice to Class of Amended Consent Decree, # 2 Exhibit B − Proposed Amended Consent Decree)(Pevar, Stephen) (Entered: 01/08/2014)
72 ORDER DIRECTING NOTICE TO PLAINTIFF CLASS OF A PROPOSED AMENDED CONSENT DECREE AND SCHEDULING A FINAL FAIRNESS HEARING granting 71 Motion for Order. Signed by Charles B. Kornmann on January 9, 2014. (DLC) (Entered: 01/09/2014)
Set Hearing: Status Conference set for 5/12/2014 at 11:30 AM in the federal courtroom of the United States Courthouse in Aberdeen, South Dakota, before Charles B. Kornmann. (DLC) (Entered: 01/09/2014)
73 DECLARATION of Courtney A. Bowie of Service of Notice on Members of Plaintiff Class. (Pevar, Stephen) (Entered: 01/22/2014)
74 Letter to the Court regarding notice to Plaintiff Class and request for telephonic fairness hearing. (Pevar, Stephen) (Entered: 03/17/2014)
75 ORDER FOR TELEPHONIC FAIRNESS HEARING set for 4/10/2014 at 03:00 PM before U.S. District Judge Charles B. Kornmann. Signed by U.S. District Judge Charles B. Kornmann on 04/01/2014. (SAT) (Entered: 04/01/2014)
76 Fairness Hearing held on 4/10/2014. before U.S. District Judge Charles B. Kornmann (Court Reporter Leslie Hicks) (DLC) (Main Document 76 replaced on 4/10/2014) (DLC). (Entered: 04/10/2014)
77 Joint MOTION to Substitute Party and Amend Case Caption by Sam Antoine, Richard Chasing Hawk, Charles Dubray, Mindi Felix, Mary Fisher, Mike Hanson, Jesse Milk, Brian Naasz, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Winner School District 59−2. (Attachments: # 1 Text of Proposed Order)(Pevar, Stephen) (Entered: 04/18/2014)
78 ORDER ON JOINT MOTION TO SUBSTITUTE PARTIES AND AMEND CASE CAPTION granting 77 Motion to Substitute Party. Yvette Iron Heart added. Signed by U.S. District Judge Charles B. Kornmann on April 28, 2014. (DLC) (Entered: 04/28/2014)
79 FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by U.S. District Judge Charles B. Kornmann on 4/29/14. (SKK) (Entered: 04/29/2014)
80 JOINT MOTION for Order Entering Amended Decree by Sam Antoine, Bruce Carrier, Richard Chasing Hawk, Charles Dubray, Mindi Felix, Yvette Iron Heart, Jesse Milk, Brian Naasz, Deidrick Old Lodge, Jennifer Peneaux, Johnathon Scruggs, Josephine Traversie, Taylor White Buffalo, Winner School District 59−2, Gerald Witte. Motion to Enter Consent Decree with Proper Heading. (Attachments: # 1 Amended Consent Decree)(Pevar, Stephen) Modified on 11/3/2014 to change into a motion (SLT). (Entered: 11/03/2014)
81 (TERMINATED per 83 order) AMENDED CONSENT DECREE granting 80 Motion to Amend/Correct. Signed by U.S. District Judge Charles B. Kornmann on 11/4/14.

Case: 3:06-cv-3007 As of: 09/23/2017 06:27 PM CDT 12 of 12

05/31/2017 06/06/2017

(SKK) Modified on 6/6/2017 (SAC). (Entered: 11/04/2014)
82 MOTION Joint Motion of Parties To Terminate Consent Decree by Winner School District 59−2. (White, Jana) (Entered: 05/31/2017)
83 ORDER granting 82 Joint Motion to terminate the 81 consent decree. Signed by U.S. District Judge Charles B. Kornmann on 06/06/2017. (SAC) (Entered: 06/06/2017)

 </s> Case 3:06-cv-03007-CBK Document 1 Filed 03/27/06 Page 1 of 42 PageID #: 1

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION

SAM ANTOINE, a minor, by and through

)

LAVINA MILK, his legal guardian;

)

RICHARD CHASING HAWK, a minor, by and ) through ROSE MENDOZA, his legal guardian; )

CHARLES DUBRAY;

)

MINDI FELIX, a minor, by and through

)

DONNA EISENBRAUN, her mother;

)

JESSE MILK, a IJ!inor, by and through

)

JOANNE BATES, his mother;

)

DEIDRICK OLD LODGE, a minor, by and

)

through YVETTE IRON HEART, his mother;

)

JENNIFER PENEAUX;

)

JOHNATHON SCRUGGS, a minor, by and

)

through CHRISTINE RINKER, his mother;

)

JOSEPHINE TRAVERSIE, a minor, by and through)

REGINA TRAVERSIE-LAPOINTE, her mother; )

TAYLOR WHITE BUFFALO, a minor, by and )

through DALE AND BEATRICE

)

WHITE BUFFALO, his parents;

)

and all others similarly situated,

)

)

Plaintiffs,

)

)

-versus-

)

)

WINNER SCHOOL DISTRICT 59-2;

)

MARY FISHER, Individually and as

)

Superintendent of the Winner School District;

)

BRIAN NAASZ, Individually and as Principal )

of Winner Middle School; and MIKE HANSON, )

Individually and as Principal of

)

Winner High School;

)

)

Defendants.

)

COMPLAINT

1

Case 3:06-cv-03007-CBK Document 1 Filed 03/27/06 Page 2 of 42 PageID #: 2
I. PRELIMINARY STATEMENT 1. This class action lawsuit challenges disciplinary policies and practices intended to push Native American children out ofthe Winner School District in Tripp County, South Dakota, into the juvenile and criminal justice systems. It seeks to compel the Winner School District to eradicate the racially hostile educational environment it has permitted to flourish in its Middle and High Schools for at least the last ten years. In addition, it asks that the District be enjoined from engaging in racially discriminatory disciplinary practices and from coercing confessions from Native American students for the sole purpose of securing criminal convictions and findings of delinquency. 2. The Winner School District has a long history of intentional racial animosity towards Native American students and their families. As a result of Defendants' racially discriminatory disciplinary practices, the procedures they employ when referring Native American students to law enforcement, and other administrative practices and policies, Defendants have created a racially hostile educational environment in the Middle and High Schools that adversely affects every Native American child who attends those schools. 3. Although the District borders the Rosebud Sioux Indian Reservation, home to over 20,000 Sicangu Sioux, and its student body is roughly 20% Native American, Defendants employ almost no Native Americans as administrators, teachers or staff. They offer one class every two years, and only to High School students, on Native American culture and heritage. They do not encourage Native Americans to participate in extracurricular and after school activities. They permit racially derogatory name-calling, teasing, bullying and pushing to go
2

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unpunished. District administrators and staff have been known to treat Native American parents with open disrespect.
4. Defendants punish Native American students for minor disciplinary infractions more harshly and more frequently than similarly situated Caucasian students. Based on statistics provided by the District, Native American students who attend the Middle and High Schools are more than three times more likely to be suspended and ten times more likely to be referred to the Winner City Police Department than their Caucasian counterparts. During any given school year, more than one third of all Native American Middle and High School students will be suspended. Roughly one out of seven Native American students will be arrested and prosecuted for violating a school disciplinary rule every school year.
5. When referring students to law enforcement, Defendants act as law enforcement agents and coerce students into confessing to criminal wrongdoing in a manner that offends fundamental notions ofliberty. Pursuant to a long-standing agreement with the Winner City Police Department and Tripp County State's Attorney's Office, Defendants decide which children to arrest and what charges to file against them. They also generate all information necessary to convict the child. Neither the Police Department nor the State's Attorney's Office conducts independent investigations into the incidents that give rise to the referrals.
6. To obtain a written confession, Defendants isolate the children, many of whom are 10, 11 and 12 years of age, in a conference room or a Principal's office and refuse to permit them to leave, even to use the restroom. While in the conference room or office, Defendants tell the children that they have to draft an affidavit and sign it in front of the School Principal who will then notarize it. Children are not permitted to speak with their parents while drafting the
3

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affidavit. The School Principals use their positions of authority and the children's relative immaturity, lack of sophistication, fear of additional punishment, and, in some cases, their learning disabilities and emotional fragility to pressure them to comply with the School Principals' demands.
7. The Principals then hand these confessions over to the Winner City Police Department, which gives them to the Tripp County State's Attorneys. The two State's Attorneys, both of whom also serve as Defendants' legal counsel, physically attach these confessions to the delinquency petitions filed against the children.
8. The affidavits have no educational purpose. They are obtained to secure a conviction.
9. The District's racially hostile educational environment, racially discriminatory disciplinary policies, and police-referral customs and practices serve to push Native American youth out of Winner schools. The students become demoralized and disengaged. They act out in school, they do poorly academically, they do not attend class, and ultimately they drop out. Some transfer to faraway districts and boarding schools. Others are incarcerated in juvenile detention or correctional facilities. Although Native Americans represent nearly a fifth of the District's student body, only two Native American students graduated from the Winner High School in the last year for which statistics are available.
10. Plaintiffs, on their own behalf and on behalf of all similarly situated Native American students in Winner Middle School and Winner High School, seek a declaration that the Defendants' policies and practices violate 42 U.S.C. § 1983, the Fifth and Fourteenth Amendments to the United States Constitution and Title VI of the Civil Rights Act, and an
4

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injunction enjoining any further violations. II. JURISDICTION AND VENUE
11. This court has subject matter jurisdiction over the Plaintiffs' claims pursuant 28 U.S.C. §§ 1331 and 1343(a)(4) because this action seeks a remedy under 42 U.S.C. § 1983 and Title VI of the Civil Rights Act, 42 U.S.C. § 2000d. Pursuant to 28 U.S.C. §§ 2201 and 2202, this Court has jurisdiction to declare the rights of the parties and to grant all further relief deemed necessary and proper. Rule 65 ofthe Federal Rules of Civil Procedure authorizes injunctive relief. The Court has authority to award costs and attorneys' fees under 42 U.S.C. § 1988.
12. Venue is proper in this action pursuant to 28 U.S.C. § 1391.
III. PARTIES A. Plaintiffs 13. Plaintiff Sam Antoine is 15 years old and enrolled in the 9th grade at the Winner High School. He is a member of the Rosebud Sioux Tribe. He appears in this action by and through his grandmother, Lavina Milk, who is also his legal guardian. 14. Plaintiff Richard Chasing Hawk is 16 years old and enrolled in the 9th grade at the Winner High School. He is a member of the Rosebud Sioux Tribe. He appears in this action by and through his legal guardian, Rose Mendoza. 15. Plaintiff Charles DuBray is 19 years old and enrolled in the 12th grade in Winner High School. He is a member of the Rosebud Sioux Tribe. 16. PlaintiffMindi Felix is 13 years old and enrolled in the 7th grade at the Winner
5

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Middle School. She is a member of the Rosebud Sioux Tribe. She appears in this action by and through her mother, Donna Eisenbraun.
17. Plaintiff Jesse Milk is 13 years old and enrolled in the 8th grade in Winner Middle School. He is a member of the Rosebud Sioux Tribe. He appears in this action by and through his mother, Joanne Bates.
18. PlaintiffDeidrick Old Lodge is 14 years old and enrolled in the 91h grade in Todd County, South Dakota. He is a member of the Rosebud Sioux Tribe. He appears in this action by and through his mother, Yvette Iron Heart. Deidrick left the Winner School District in March 2006 because of the policies and practices challenged herein. He would return to the Winner School District if those policies and practices were to change.
19. Plaintiff Jennifer Peneaux is 19 years old and enrolled in the 12th grade in Winner High School. She is a member of the Rosebud Sioux Tribe.
20. Plaintiff Johnathon Scruggs is 15 years old and is in the Jh grade at a public
school in Anderson, Indiana. He appears in this action by and through his mother, Christine Rinker, who is a member of the Rosebud Sioux Tribe. John was enrolled in the Winner School District until October 2005, when he moved to Indiana to avoid Defendants' racially discriminatory disciplinary practices. He would return to the Winner School District if it changed its disciplinary policies and practices.
21. Plaintiff Josephine "Josie" Traversie is 15 years old and enrolled in the 9th grade in Winner High School. She is a member of the Rosebud Sioux Tribe and appears in this action by and through her mother, Regina Traversie-La Pointe.
6

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Case 3:06-cv-03007-CBK Document 1 Filed 03/27/06 Page 7 of 42 PageID #: 7
22. Plaintiff Taylor White Buffalo is 13 years old and enrolled in the 7th grade at the Winner Middle School. He is a member of the Rosebud Sioux Tribe. He appears in this action by and through his parents, Dale and Beatrice White Buffalo.
B. Defendants 23. Defendant Winner School District 59-2 is a properly incorporated school district in Tripp County, South Dakota. 24. The District is governed by the Winner Board of Education, S.D. C.L. § 13-8-1, which has "general charge, direction and management of the schools" within the District. S.D.C.L. § 18-8-39. Pursuant to Winner School District Official School Board Policy File No: 2.08, the Board has "[c]omplete final authority on all matters pertaining to the district's education system, except as prescribed by law." Pursuant to Winner School District Official School Board Policy File No: 2.16, the Board is solely responsible for adopting new policies or changing existing policies. 25. Defendant Mary Fisher is the Superintendent of Winner School District. Together with the Principals of the schools in her district, she has "disciplinary authority over all students while the students are in the school or participating in or attending school sponsored activities whether on or off school premises." S.D. C.L. § 13-32-1. The Winner Board of Education has delegated to her "total responsibility for the school system's administration," Winner School District Official School Board Policy File No: 2. 08, and responsibility for "establish[ing] procedures for dealing with disciplinary problems" within the parameters promulgated by the Board of Education. Winner School District Official School Board Policy, File No: 7-11. She is sued in her official and her individual capacities.
7

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26. Defendant Brian Naasz is Principal of the Winner Middle School. Together with Defendant Fisher and Defendant Hanson, he has "disciplinary authority over all students while the students are in the school or participating in or attending school sponsored activities whether on or off school premises." S.D.C.L. § 13-32-1. In addition, the Winner Board of Education has delegated to him "the authority to enforce policy and regulations governing student behavior," Winner School District School Board Policy File No: 7.11, and the responsibility to enforce "discipline as necessary, according full due process to students." Winner School District School Board Policy File No: 6. 02. He is sued in his official and individual capacities.
27. Defendant Mike Hanson is Principal of the Winner High School. Together with Defendant Fisher and Defendant Naasz, he has "disciplinary authority over all students while the students are in the school or participating in or attending school sponsored activities whether on or off school premises." S.D.C.L. § 13-32-1. In addition, the Winner Board of Education has delegated to him ''the authority to enforce policy and regulations governing student behavior," Winner School District School Board Policy File No: 7.11, and the responsibility to enforce "discipline as necessary, according full due process to students," Winner School District School Board Policy File No: 6. 02. He is sued in his official and individual capacities.
28. For all purposes relevant to this Complaint, Defendants have acted and continue to act under color of state law.
IV. CLASS ACTION ALLEGATIONS 29. Pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2), Plaintiffs bring this action on behalf of themselves and all other similarly situated individuals. Plaintiffs ask the
8

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Court to certify as a class all Native American students who are currently or will at some time in the future attend Winner Middle School or Winner High School.
30. This action satisfies all four requirements of Rule 23(a): a. Numerosity: Joinder of all class members is impracticable because of the
size of the class and the fact that the class includes some members who cannot be identified with any degree of specificity. Approximately 80 Native Americans enroll in the Winner Middle and High Schools each academic year. The identity of those who will attend those two schools in the future cannot be determined, particularly given the fluidity of the student body population. It is not unusual for a Native American student to enroll in Winner School District, leave the district, and then re-enroll two or more times during the course of his or her educational career.
b. Commonality: There are questions of law and fact common to all members of the class, including, but not limited to, whether Defendants engage in racially discriminatory disciplinary practices and whether the manner in which signed statements and affidavits are obtained from class members violates their constitutional rights.
c. Typicality: The claims of the representative Plaintiffs are typical of those of the class. Each Plaintiff has been subjected to the racially hostile educational environment at the Winner Middle and/or High School and Defendants' racially discriminatory disciplinary policies.
d. Adequacy ofRepresentation: The class representatives and class counsel will fairly and adequately represent the interests of the class. The class representatives have no interests in this matter that are antagonistic to other Plaintiffs. Class counsel has
9

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many years of experience in civil rights and class action litigation, has investigated extensively the Winner School District and its disciplinary practices, and has the financial resources to zealously represent the class. 31. Class-wide declaratory and injunctive relief is appropriate under Rule 23(b)(2) because Defendants have acted or refused to act on grounds generally applicable to the class as a whole.
V. FACTS RELATING TO WINNER SCHOOL DISTRICT A. Winner School District 32. The Winner School District is located in Tripp County, a rural county bordering the Rosebud Sioux Indian Reservation in south central South Dakota. According to the United States Census Bureau, Tripp County has a population of approximately 6,000 people, over 11% of whom are Native American. 33. There are six schools in the Winner School District. The three largest are located in the town of Winner: the Winner Elementary School (K through 41h grades), the Winner Middle School (5th through 8th grades), and the Winner High School (9th through 12th grades). The remaining three schools are small rural schools, located outside of town: Hamill Rural School, Millboro School and Beaver Creek School. 34. According to the website schooltree.com, the Winner School District currently enrolls approximately 980 students, 19% ofwhom are Native American. <http://southdakota.schooltree. org/district/Winner-School-District-59-2-014 759. html>. The percentage of Native Americans decreases across grades, however, because Native American students leave District schools as they grow older. Thus, 30% of Winner Elementary School's 340 students are
10

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Native American, <http://south-dakota.schooltree. org/public/Winner-Elementary-078560. html>; 15.5% of the Winner Middle School's 290 students are Native American, <http://southdakota.schooltree.org/public/Winner-Middle-078562.html>; and 14% of the High School's 320 students are Native American, <http://south-dakota.schooltree.org/public/Winner-High078561.html>.
35. The District receives several hundred thousand dollars per year from a variety of federal programs. During the 2004-05 school year, for example, it received over $450,000 pursuant to Titles I (Improving the Academic Achievement of the Disadvantaged), II (Preparing, Training and Recruiting High Quality Teachers and Principals), and IV (21st Century Schools) of the federal No Child Left Behind Act.
B. The District's Maintenance of a Racially Hostile Environment 36. During the last ten years, Defendants have knowingly permitted a racially hostile environment to develop and flourish at the Winner Middle and High Schools by intentionally disciplining students in a racially discriminatory manner as described in supra Section C, using unlawful police-referral policies and practices as described in supra Section D, and by purposefully administering the schools in a manner antagonistic to Native American students and their families, as described more fully below. 37. For example, Defendants refuse to remedy student-on-student racial harassment. Caucasian students frequently call Native American students racially derogatory names, such as "dirty Indian," "black boy," "Indian bitch" or "prairie nigger," and tell them to "go back to the reservation." When students and parents report these incidents to Defendants, Defendants make little effort to stop them. According to its own statistics, the District only punished one child for
11

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racial harassment in 2003-2004 and one in 2004-2005. 38. Similarly, Defendants routinely accuse Native American students of engaging in
gang-related activities when they walk, talk, or stand in a group of three or more, wear bandanas, or write "Native Pride" or draw medicine wheels on their notebooks. Caucasian students who engage in similar behavior are not subject to the same accusations. In fact, during a basketball tournament hosted by Winner High School in November 2004, Caucasian students wore bandanas with the school's explicit consent.
39. With the exception of one or two Native American teacher's aides, all seven members of the District's Board of Education, and all 92 administrators, teachers and staff employed by the Winner School District are Caucasian.
40. In August 2002, the District cancelled bus service to "Indian housing," the neighborhood where most Native Americans reside, 1.5 miles from the Winner Middle and High Schools. Until the Rosebud Sioux Tribe began driving children to school in Fall 2005 with a school bus donated by the Lower Brule Sioux Tribe, Native American students whose families did not have cars were often unable to go to school in the winter when the weather was particularly harsh.
41. Few Native American students participate on sports teams or after-school extracurricular activities, such as band, chorus, cheerleading or student government. During the 2003-04 school year, for example, only five Native American High School students and six Native American Middle School students participated in school sports. The High School had twelve athletic teams, each of which had between fifteen and twenty-five members. The Middle School had approximately nine sports teams, each of which also had between fifteen and twenty-
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five members. Native students who have expressed interest in such activities generally do not feel welcome and in some cases have been explicitly denied access.
42. Although the United States Commission on Civil Rights states that for Native American students, the importance of "environments that support their cultural identities" "cannot be overstated," the Winner High School offers only one elective on Native American culture every other year. The Middle School offers no such classes.
43. In 2000, the Office of Civil Rights of the United States Department of Education (OCR) intervened in response to community complaints, requiring the Winner School District to revise its disciplinary policies and procedures to eliminate discrimination.
44. In 2002, the Rosebud Sioux Tribal Department of Education sent OCR a letter informing it that the Winner School District was not taking the requisite steps.
45. In June 2004, OCR withdrew its monitoring efforts, relying on false and misleading evidence provided by the District.
46. In June 2005, fourteen Native American families filed another complaint with OCR, documenting the persistence of discrimination in Winner School District. OCR did not respond until nine months later, by which time most of the complainants had left the District, either dropping out of school altogether, incarcerated in a detention facility, or transferring to another district.
47. Defendants have sought to intimidate and silence Native American parents critical of the District's policies and practices.
48. Among other examples, when the members of the Johnson O'Malley (JOM) Board --- a federally mandated body of community-elected Native American parents to oversee
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relations between the community and school administrators--- criticized the District's disciplinary policies and lack of busing, Defendants dissolved the Board. School administrators subsequently convened a new JOM Board without giving notice to all former Board members or the community. Federal regulations require that the Board be elected by majority vote oflndian parents, but, on information and belief, there have been no such elections since 2001.
49. Another Native American mother, who had complained about unfair disciplinary practices, likewise was subject to intimidation by Defendants. Defendants pursued criminal charges against her when her child no longer wanted to attend school, and then threatened to file a Child in Need of Supervision (CHINS) petition against the child.
C. The District's Pattern and Practice of DisciplininK Students in a Racially Discriminatory Manner
50. The Winner Middle and High Schools' disciplinary rules are set forth in each school's Student Handbook. The Handbooks list various possible disciplinary infractions, the punishments that may be imposed for each (e.g., warnings, in-school suspensions and out-ofschool suspensions), and the circumstances under which law enforcement may be notified.
51. The Middle School Handbook, for example, states that Middle School administrators will notify local law enforcement of: (a) fights involving "swinging;" (b) falsely pulling fire alarms; (c) tobacco, drugs and alcohol on school grounds; (d) stealing; (e) in certain cases, vandalism; and (f) gang related activities.
52. The High School Handbook states that High School administrators will notify local law enforcement of: (a) fighting ("actual swinging/assault"); (b) drugs and alcohol on school grounds; (c) weapons on school grounds; and (d) gang related activities.
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53. Defendants have always maintained that despite the Handbooks, the Defendant School Principals, either as final policymakers with respect to school disciplinary matters, or under the guidance and supervision ofthe Defendant Superintendent and/or the Winner Board of Education, retain the discretion to decide whether a student has violated a disciplinary rule and what type ofpunishment to impose.
54. For at least the last ten years, Defendants have exercised this discretion by intentionally imposing harsher and more frequent punishments on Native American children than on Caucasian children engaging in similar misconduct, and by requesting the arrest and prosecution ofNative American students for minor incidents of school misconduct while permitting Caucasian students to engage in more egregious misconduct without involving law enforcement.
55. For example, Defendant Principals initiated the arrest and prosecution of a 10year-old Native American boy who jokingly placed a Caucasian friend in a headlock and laughingly threatened to break the friend's neck. They suspended a Native American student for responding to derogatory racial epithets from a Caucasian student by calling the Caucasian student a "stupid bitch." The Caucasian student had stated, "I guess it is time to throw rocks at greasy Indians," and had called the Native American a "dirty Indian," "fucking crackhead," and "dirty raunchy Indian." They sought to have an 11-year old Native American girl who accidentally pulled a fire alarm declared a juvenile delinquent and placed on probation for one year. They expelled and referred a 12-year old Native American boy to law enforcement for keeping lyrics to rap songs in his locker. They sought the arrest and prosecution of a 12-year old
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Native American boy who had a small rubber-band toy in his pocket and teasingly stated to a Caucasian classmate, "I'll peck you off."
56. At the same time, they did not request the arrest and prosecution of a Caucasian girl who slapped a Native American girl on the face with a belt, or a 12-year old Caucasian boy who struck a severely learning-disabled Native American classmate with a metal-edged ruler, or a 13-year old Caucasian boy who told a Native American boy, "I'm going to kill you," or another 13-year old Caucasian boy who told a 13-year old Native American Middle School student that he wanted "to kill Indians" and that he specifically wanted to see her "blood all over."
57. Statistics set forth in End ofYear Discipline Reports prepared by the Defendant School Principals for the Defendant Superintendent confirm that Defendants punish Native American students more harshly and more frequently than their Caucasian counterparts. Native Americans are disproportionately punished for conduct requiring a subjective assessment such as "insubordination." During the 2004-2005 school year, for example, the Middle School suspended more than one in three Native American students for "insubordination," as compared to only one out of every ten Caucasian students. Native American youth are suspended (inschool and out-of-school) more frequently than their Caucasian counterparts. During that same school year, more than half of the Native American Middle School student body was suspended, as compared to only 17% of the Caucasian student body. In the High School, although Native American youth represented only 15% of the student body, they received 100% of the out-ofschool suspensions in 2003-2004, and 84% of the out-of-school suspensions in 2004-2005.
58. And, Native American youth are far more likely to be arrested at school. In each of the past four years, Defendants have referred for arrest and prosecution an average of one in
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every seven Native American Middle and High School students, but only one in every 70

Caucasian Middle and High School students.

Racial Disparities in Discipline: Winner Middle School

School Year

Number Enrolled

% of Racial Group Suspended for
"Insubordination"

% of Racial Group Suspended

%of Racial Group Referred to Law Enforcement

2001-02 2002-03 2003-04 2004-05

Cauc. 3% 2% 3% 1%

Racial Disparities in Discipline: Winner High School

School Year

Number Enrolled

%of Racial Group Suspended for
"Insubordination"

% of Racial Group Suspended

% of Racial Group Referred to Law Enforcement

59. Given the above statistics, every Native American student enrolled in the Winner Middle and High School faces a substantial likelihood of suspension, arrest and prosecution simply because of his or her race and ethnicity.
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D. Defendants' Pattern and Practice of Unlawfully Coercin& Confessions 60. Pursuant to a long-standing agreement with the Winner City Police Department and the Tripp County State's Attorney's Office, Defendants act as agents oflaw enforcement after deciding that a particular student should be arrested for school misconduct. They contact the Winner City Police Department, request that a police officer be sent to the Middle or High School, specifY the crime with which they want the student charged (usually Simple Assault or Disturbance of School) and compile all the evidence necessary to prosecute and adjudicate the child a juvenile delinquent. 61. As a part of compiling the necessary evidence, Defendants, pursuant to the same long-standing agreement referred to above, compel students to confess in writing, under oath, to criminal wrongdoing. In so doing, they engage in conduct that offends fundamental concepts of fairness. 62. Specifically, they exploit their positions of authority, and the students' immaturity, lack of sophistication, cultural differences, and in some cases physical and emotional disabilities. Prior to the arrival of the police officers at the school, Defendant Principals isolate the student to be arrested, hand him or her a form entitled "Affidavit" or "Affidavit in Support of Criminal Prosecution," and order him or her to describe the incident giving rise to the arrest and prosecution, and sign the completed form in front of the Principal. The Principals notarize the completed forms. 63. Alternatively, the Defendant Principals have the student's statement typed and require the student to sign it, attesting to its accuracy.
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64. Most affidavits and statements consist of a few simple sentences. Students are neither counseled to describe the circumstances leading up to the alleged fight nor to include any mitigating factors or possible defenses.
65. Students are not permitted to leave the Defendant Principals' office or the conference room without the Principals' authorization. Students who do not complete the affidavit or sign the statement are told either that they cannot leave the conference room until they do or that they will have to complete the form at the police station.
66. Students believe that failure to obey the Defendant Principals' instructions can result in additional punishment. In fact, Defendant Principals have characterized a refusal to draft or sign a written statement as "insubordination," a disciplinary infraction that has been punished with suspension, loss of classroom credit, a bad grade, or in some instances, the school's filing of a Child in Need of Supervision (CHINS) petition against the student.
67. Few, if any, students understand the significance of signing the affidavit or the statement. Defendants do not inform the children that these statements will be used against them in delinquency or criminal proceedings. They do not inform the children that they have the right to remain silent. They do not inform the children that they have a right against selfincrimination. Few of the children understand the contours of his or her constitutional rights
68. As a general rule, Defendants do not notify the students' parents of the child's arrest in a timely manner. Although South Dakota Administrative Rule§ 24-07-02-01 permits school officials to arrest a child without notifying parents only where the child poses a continuing threat or danger, few, if any, of these children constitute a continuing threat or danger.
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69. When the police arrive at the school, Defendants hand them the affidavits and any supporting materials. Upon information and belief, the police do not conduct any type of independent investigation into the charges against the children. In most cases, the police never question the students.
70. The police, in turn, give the affidavits and supporting materials to the Tripp County State's Attorneys, both of whom serve as legal counsel for Defendant Winner School District. The State's Attorneys physically attach the affidavits and statements to the delinquency petitions served upon the children and their families.
71. In light of their notarized confessions written, many students feel they are precluded from raising mitigating factors or defenses and have no option other than to admit to the charges against them.
72. Defendants do not maintain copies in the children's individual school files; the signed and notarized confessions serve no educational purpose. They serve only a law enforcement function.
73. By delegating to Defendants responsibility for obtaining the confessions, the Winner School District, the Winner City Police Department and the Tripp County State's Attorney's Office circumvent the constitutional protections afforded to individuals accused of criminal misconduct or juvenile delinquency, including, but not limited to, the right to remain silent and the right to consult with an attorney.
E. Harm Suffered by the Plaintiff Class 74. The racially hostile educational environmental resulting from Defendants' unlawfully discriminatory disciplinary procedures, its unlawful law enforcement referral customs
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and its administrative practices interferes with and limits the ability of members of the Plaintiff Class to participate in the educational opportunities afforded by the Winner School District. Targeted because oftheir race and ethnicity, the self-confidence and self-esteem ofNative American students plummet. They express fear and frustration by acting out, talking back, or failing to attend classes, all of which lead to additional suspensions from school and other disciplinary measures. During the 2004-05 school year, two Native American High School students were placed on homebound status by their doctors as a result of the stress from the constant harassment at school.
75. The academic performance ofNative American students suffers. Children who had a "C" average while emolled in the Winner School District have graduated from schools in less hostile districts with honors.
76. Many students transfer to schools in other counties or simply drop out of school. Because the area is rural and sparsely populated, there are few educational alternatives. Students wishing to transfer are often forced to leave their families behind and board at their new schools. In some cases, entire families move.
77. Those children adjudicated delinquent frequently find themselves spending months and sometimes years in juvenile detention and correctional facilities. Most are sentenced to between three and twelve months of probation. As conditions of their probation, they must attend school regularly and obey the school's disciplinary rules. If they do not abide by these terms, Defendants report them to their probation officers, who frequently take them into custody and send them, sometimes on an emergency basis without hearing and without notifYing the child's parents, to a detention or correctional facility.
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78. Defendants frequently rely on trivial school incidents to report students for violating the terms of their probation. Defendants reported a Native American Middle School student for falling asleep during study hall. They reported a 15-year-old Native American girl for grabbing the backpack of a Caucasian student who spit at her. Both of these children were sent to a juvenile detention or correctional facility.
79. Enrollment statistics confirm that Native American children leave the Winner School District in large numbers after they enter Middle School. Although Native Americans constitute almost a third ofthe Winner Elementary School student body, they account for 14% of the Winner High School student body. While one in five 9th grade students are Native American, only one in twenty 12th grade students are Native American.
80. During the 2001-2002 school year, the most recent year for which statistics are available, only two (2) Native American students graduated from Winner High School; during the prior year, four (4) graduated.
81. Failure to grant Plaintiffs the relief requested herein will result in continued and irreparable harm.
F. The ChallenKed Actions and Inactions As Defendants' Official Policy 82. For all purposes relevant to this Complaint, Defendants have acted and continue to with the intent to discriminate against Plaintiffs and members of the Plaintiff class. 83. The practices described herein constitute official policy ofthe Winner School District and the Winner Board of Education because they are longstanding and widespread practices about which the Board and Defendant Superintendent knew or should have known, but failed to remedy. In fact, Defendant Fisher's immediate predecessor, David Nicolas, engaged in
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the same racially discriminatory disciplinary and police referral practices while both Superintendent ofthe Winner School District and Principal of the Middle School.
84. Alternatively, these practices constitute official policy of the Winner School District and the Winner Board of Education because they were promulgated by the Defendant Superintendent and Defendant Principals who have final policy making authority on school disciplinary matters pursuant to state law; and/or to whom such authority has been delegated by the Board of Education.
85. Alternatively, these practices constitute official policy of the Winner School District and the Winner Board of Education because they were undertaken pursuant to official policy promulgated by the Board.
86. Alternatively, Defendants are liable for these practices because they have a policy of failing to adequately train or supervise Winner School District officials in the administration of discipline, which foreseeably resulted in the harms described herein. On information and belief, Winner School District and the Winner Board of Education never provided Defendant Superintendent and Defendant Principals with any form of training or supervision regarding the administration of a disciplinary program in the Middle and High Schools.
87. The Plaintiff class has no adequate remedy at law.
VI. FACTS RELATING TO THE INDIVIDUAL NAMED PLAINTIFFS A. Sam Antoine 88. In October 2003, when Sam Antoine was 12 years old and in the 61h grade at the Winner Middle School, he hit a Caucasian classmate who shoved him and called him a "prairie
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nigger." Upon learning ofthe altercation, Defendant Principal Naasz contacted the Winner Police Department and requested that Sam be arrested and charged with criminal misconduct, but not the Caucasian student. Before this incident, Sam had had no contact with the juvenile justice

system. 89. Defendant Principal Naasz sequestered Sam in a conference room near his office
and questioned him. He used his position of authority, the fact that Sam was only 12 years old, Sam's respect for authority and Sam's fear of further punishment to compel Sam to draft and sign a statement on a form entitled "Affidavit," in which Sam admitted to hitting the other student. Sam believed that he had no choice but to comply. Defendant Naasz then notarized the

affidavit. 90. At no time did Defendant Naasz tell Sam that the affidavit might be used against
him in a delinquency proceeding or that he had a constitutionally protected right to remain silent. 91. When police arrived at the school, Defendant Naasz released Sam into their
custody. Defendant Naasz did not attempt to contact Sam's grandmother, Mrs. Milk, before releasing him to the Winner City Police Department. In fact, Mrs. Milk only learned of Sam's arrest because she happened to be at the Post Office across the street from the school when she

saw the police escorting Sam into a police car. 92. In his own car, Defendant Naasz followed the police officers and Sam to the
police station. Once there, he handed the police officers Sam's affidavit, his own affidavit attesting to Sam's guilt, and three other affidavits from students who allegedly witnessed the

altercation. 93.

A few weeks later, Sam and his family were served with a Delinquency Petition

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charging Sam with Simple Assault and Disturbance of School. Sam's affidavit and the other affidavits were attached to and incorporated into the Petition.
94. On two separate occasions, Mrs. Milk asked Defendant Naasz whether she should retain a lawyer. Both times he said no and explained that Sam's prosecution was "a pretty routine procedure."
95. Without the advice of counsel, Sam subsequently admitted to the allegations in the Petition and was adjudicated delinquent. He was sentenced to six months of probation and community service.
96. The juvenile court judge told Sam's family that if he insisted upon going to trial, he would be found guilty because ofthe affidavits attached to the Delinquency Petition and that he would be removed from Mrs. Milk's custody.
97. From Defendant Naasz, Sam received two days of out-of-school suspension. Sam's school records cite Sam as the "instigator" of the fight, even though they confirm that the Caucasian boy pushed Sam first.
98. On information and belief, the Caucasian student who initiated the fight was neither suspended nor referred to law enforcement, although Defendants' written policies called for a minimum two days of suspension for pushing. When Mrs. Milk complained to Defendant Naasz about the name-calling to which Native American children are subjected at the Middle School and asked why Caucasian children were never punished, Naasz responded: "We can't watch everybody all the time."
B. Richard Chasine Hawk
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99. In September 2003, when he was 12 years old and in the 7th grade at the Winner Middle School, Richard Chasing Hawk and a Caucasian student hit each other after the Caucasian student accused Richard of erasing something from the classroom blackboard. Upon learning of the altercation, Defendant Principal Naasz contacted the Winner City Police Department and requested that both boys be arrested and prosecuted. Police records indicate that Defendant Naasz specifically asked that the boys be charged with Simple Assault. Prior to this incident, Richard had had no contact with the juvenile justice system.
100. Defendant Naasz placed Richard in Defendant Superintendent Fisher's office, and used his position of authority, and Richard's youth, respect for authority and fear of additional punishment to compel Richard to draft and sign an affidavit in which Richard admitted to hitting the Caucasian student. Richard, only 12 years old at the time, believed that he had no choice but to comply. Principal Naasz notarized the affidavit.
101. At no time did Principal Naasz inform Richard that the affidavit would be used against him in a juvenile delinquency proceeding or that he had a right to remain silent.
102. When the police officers arrived at the school to take Richard and the other student into custody, Defendant Naasz gave them Richard's affidavit, an affidavit from the Caucasian student, an affidavit that Defendant Naasz had drafted in which he stated that the two boys had hit each other, and a teacher's affidavit.
103. Upon information and belief, the Winner City Police conducted no independent investigation into the incident.
104. One month later, Richard's family was served with a Summons and Delinquency Petition charging Richard with Simple Assault and Disturbance of School. Attached to and
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incorporated by reference into the Petition were Richard's affidavits and the other affidavits compiled by Defendant Naasz.
105. Richard subsequently admitted to the allegations in the Petition and was adjudicated delinquent and sentenced to 90 days probation. At no point during the proceeding was he represented by counsel.
106. The Caucasian student was also adjudicated delinquent and received the same sentence as did Richard. In addition, Defendant Naasz suspended both boys from school for two days.
107. Two months later, Defendant Naasz again requested Richard's arrest and prosecution. Another Native American student, acting out in class with a pencil in his hand, stabbed Richard in the stomach, breaking the skin. Richard hit the boy in response.
108. Defendant Naasz sequestered Richard in Superintendent Fisher's office and handed Richard a form affidavit, stating: "You know what to do." Again, believing that he had no choice but to comply, Richard drafted and signed an affidavit in which he admitted to hitting the other child. Richard's affidavit and three other affidavits compiled by Defendant Naasz were attached to and incorporated into the Delinquency Petition served upon Richard's family.
109. In February 2004, the charges against Richard were dismissed. The other Native American child, however, was adjudicated delinquent and sent to a juvenile correctional facility. Both boys were suspended from school.
C. Charles DuBray 110. Charles is part of a large and close-knit extended family. In November 2000, when Charles was 14 years old and in the Middle School, he and a cousin fought during lunch
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period over a shirt that one of them was wearing. Although the two children lived next door to each other and saw each other on a daily basis, Defendants never contacted their parents in an effort to resolve the dispute.
111. Instead, upon learning ofthe altercation, Defendant Principal Naasz' predecessor, District Superintendent and Middle School Principal David Nicolas, placed Charles in a conference room next to his office and questioned him. He then used his position of authority, and Charles' youth, respect for authority and fear of additional punishment to compel Charles to draft and sign an affidavit entitled "Affidavit in Support of Criminal Prosecution," in which Charles admitted to hitting his cousin. Charles, 14 years old at the time, believed that he had no choice but to comply. Principal Nicolas notarized the statement.
112. At some point, Principal Nicolas gave Charles' statement to the Winner City Police Department. Upon information and belief, the Winner City Police Department conducted no investigation into the incident.
113. In March 2001, five months after the initial confrontation, Charles' family was served with a Delinquency Petition charging Charles with Simple Assault and Disorderly Conduct. Charles' affidavit was attached to and incorporated into the Petition.
114. Charles admitted to the charges set forth in the Petition and was adjudicated delinquent and sentenced to six months of probation.
D. Mindi Felix 115. Mindi has had an Individualized Education Plan for each of the last eight years. Prior to entering kindergarten, she was diagnosed with developmental delays in speech and cognitive areas. She continues to have notable difficulty with expressive language.
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116. In April2005, when Mindi was in 61h grade at the Middle School, she was playing tag and hit a Caucasian classmate who had scratched and cursed at a Native American friend. Upon learning of the fight, Defendant Principal Naasz contacted the Winner City Police Department to request the arrest and prosecution of the two Native American girls, but not the Caucasian girl. Prior to this incident, Mindi had had no contact with the juvenile justice system.
117. Defendant Naasz sequestered Mindi in his office, interviewed her and recorded the interview on audiotape. He then ordered Mindi to draft and sign an affidavit describing the altercation. Intimidated by Principal Naasz position of authority, confused as to what was happening because she was only in 6th grade and suffers from cognitive and expressive disabilities, and fearing further punishment if she failed to comply, Mindi did as Defendant Naasz requested. Defendant Naasz then notarized the affidavit.
118. The affidavit does not mention the Caucasian student's cursing or scratching or any other mitigating circumstances.
119. Defendant Naasz did not inform Mindi that the affidavit would be used against her in a juvenile delinquency proceeding or that she had the right to remain silent.
120. When the police officers arrived at the school to transport Mindi and her friend to the police station, Defendant Naasz gave them Mindi's affidavit, an affidavit he had drafted describing the altercation and the sworn statements of two other students. On information and belief, the Winner City Police conducted no independent investigation into the incident.
121. Mindi's family was served with a Delinquency Petition charging her with Disorderly Conduct and Disturbance of School. Mindi's affidavit and the other affidavits supplied by Principal Naasz were attached to and incorporated into the Petition.
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122. Mindi's case was referred to a Court Services Officer for "informal adjustment." Mindi met with the Court Services Officer once. He requested that she complete five hours of community services.
123. Principal Naasz suspended both Mindi and the other Native American girl from school for two days. The Caucasian girl whose actions had precipitated the fight was neither referred to law enforcement nor suspended, although the school's written policies called for a minimum one day of suspension for being involved in a fight.
124. After this incident, Defendant Naasz requested that the Winner City Police Department arrest and prosecute Mindi on two additional occasions for fighting with another Native American classmate. Both times, Defendant Naasz coerced Mindi into writing an affidavit, employing the same methods described above. Both times, the affidavit was used against Mindi in a juvenile delinquency proceeding.
E. Jessie Milk 125. During the 2004-05 school year, when Jesse was in the 7th grade at the Winner Middle School, Principal Defendant Naasz suspended Jesse three times. He was suspended twice for fighting with a Caucasian student who purposefully pushed him. On information and belief, the Caucasian student was not punished, even though the school's written policies call for a minimum two days of suspension for pushing. On the third occasion, Jesse was suspended for mumbling under this breath that a P.E. teacher, who had harassed and belittled Jesse for running slowly during class, was a "motherf----g racist." 126. Discouraged by his treatment at school, Jessie stopped going to class during parts of the 2005-06 school year. Defendant Principal Naasz initiated criminal proceedings against
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Jesse's mother, Joanne, because of the truancy. As a result, a bench warrant for Joanne's arrest was issued. Joanne went to court and was fined $200 and 30 days in jail, both of which were suspended. She was told, however, that she would need to pay the fine and go to jail if Jesse had any more unexcused absences or tardies.
127. In February 2006, Principal Naasz ordered Jesse to remove his jacket that he had tied around his waist. When Jesse objected, pointing to other children permitted to wear jackets tied around their waist, Principal Naasz threatened to punish Jesse for "insubordination." Principal Naasz then called Jesse's mother, Joanne, and informed her that if Jesse were "insubordinate" again, he would file a Child in Need of Supervision petition against Jesse in juvenile court.
F. Deidrick Old Lodge 128. Deidrick is physically disabled and unable to use his right arm effectively. At the age of five and again at the age of nine, he was diagnosed with learning difficulties and attention deficits. He received special educational services until he was nine, at which time the Winner School District, despite his diagnoses, decided he no longer met the criteria for such services. 129. In February 2003, when he was 11 years old and enrolled in 6th grade at the Winner Middle School, two Caucasian 6th grade classmates were wrestling in a school hallway as Deidrick walked by. One of the students pushed Deidrick. The other hit him. In response, Deidrick hit one ofthe students. Upon learning of the incident, Defendant Principal Naasz contacted the Winner City Police Department and requested the arrest and prosecution of all three students. Before this incident, Deidrick had had no contact with the juvenile justice system. 130. Defendant Naasz sequestered Deidrick in a conference room near his office and
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told him that the other two boys were drafting statements describing what had happened. He ordered Deidrick to do the same. Because ofDeidrick's youth, his respect for authority, his disabilities and his fear of further punishment, Deidrick, only 11 years old at the time, believed he had no choice but to comply.
131. Defendant Naasz then collected all three statements and typed new ones. He ordered each of the boys to sign the typed statement. On information and belief, Defendant Naasz did not inform the boys that the statements would be used against them in a delinquency proceeding or that they had the right to remain silent.
132. When the police officers arrived at the school, Defendant Naasz gave them Deidrick's affidavit, along with an affidavit he completed describing the fight and the affidavits of the two other students. On information and belief, the Winner City Police conducted no independent investigation into the incident.
133. The police transported Deidrick to the police station, where he remained for three hours before his family was notified of his whereabouts.
134. Deidrick's family subsequently was served with a Delinquency Petition charging him with Disorderly Conduct and Disturbance of School. Deidrick's affidavit and the other statements were attached to and incorporated into the Petition.
135. Deidrick, the only one of the three boys not represented by counsel, admitted to the charges against him and was adjudicated delinquent and sentenced to 90 days probation. In addition, Defendant Naasz suspended all three boys from school.
G. Jennifer Peneaux
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136. In January 2005, when Jennifer Peneaux was in the 11th grade, she got into a fight with another Native American student over a pair ofjeans. Upon learning of the fight, Defendant Principal Hanson contacted the Winner City Police Department and requested that both girls be arrested and charged with criminal misconduct.
137. Defendant Hanson summoned both girls to his office and questioned them separately. He exploited his position of authority, Jennifer's youth, her respect for authority and her fear of further punishment, to compel Jennifer to admit to hitting the other student. He then typed Jennifer's admission into his computer and printed out her statement. He asked Jennifer to sign the statement attesting to its veracity. Jennifer believed that she had no choice but to comply.
138. When officers from the Winner City Police Department arrived at the High School to arrest Jennifer, Defendant Hansen gave them Jennifer's statement.
139. At the police station, officers questioned Jennifer about her involvement in the altercation, but no one informed her of her right to remain silent.
140. A week later, Jennifer was served with a criminal complaint charging her with Disorderly Conduct and Disturbance of School. Because she was 18 years of age at the time of the fight, she was not charged in juvenile court, but in criminal court. Her statement, as well as that of an alleged student witness, were attached to and incorporated into the charging documents.
141. Jennifer pled guilty to the Disturbance of School charge and was convicted, fined, and sentenced to 10 days suspended in the Tripp County Jail and community service. She was not represented by counsel.
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142. Defendant Hanson suspended her from school for two days. H. Johnathon ("John") Scru~~s 143. John has severe learning disabilities. Prior to entering kindergarten, he was diagnosed as "mildly mentally disabled." An Individualized Education Plan (IEP) prepared by Defendants when John was in the 5th grade states that he is "currently reading at the 1st grade level," "writing is stressful for him," and he "is difficult to understand during conversation speech because he mumbles, drops his endings, and speaks too rapidly." 144. In January 2005, when he was in the 61h grade at the Winner Middle School, a Caucasian classmate hit John with a metal-edged ruler in a dispute over a science project during the last class of the day. John responded by hitting the classmate with his fist. The science teacher reported the incident to Defendant Principal Naasz, who contacted the Winner City Police Department to request John's arrest and prosecution. 145. Before the police arrived at the school, Defendant Naasz placed John in a conference room next to his office and asked him to draft and sign an affidavit describing the altercation. Initially, John refused, but Defendant Naasz told him that the police needed a signed affidavit and that John could not leave the conference room until he had drafted one, even if it took him "all day and all night." Eleven-year-old John believed he had no other choice and complied with Defendant Naasz' request. Once John had completed the affidavit, Defendant Naasz notarized it. 146. When John's mother came to pick him up at the end of the school day, she was unable to locate John. When she asked the receptionist outside of Principal Naasz' office where John was, she was told that John was busy. When she asked to speak to Principal Naasz, she was
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told that he was also busy. School administrators would not let her see John until he had

completed the confession and Defendant Naasz had notarized it.

147. When the Winner City Police Department arrived at the school, Defendant Naasz

directed them to arrest John and not the other student. Defendant Naasz gave the police John's

affidavit, an affidavit that Defendant Naasz had drafted and the affidavits oftwo other students

who had allegedly witnessed the event.

148. On information and belief, the Winner City Police conducted no further

investigation into the incident. The police officers drove John to the police station in their car

with John's mother following in her car.

149. Two weeks later, John's mother was served with a Summons and Delinquency

Petition, charging John with Disorderly Conduct and Disturbance of School. John's affidavit,

along with the other statements, were attached to and incorporated into the Petition.

150. John ultimately admitted to the charges against him and was adjudicated

delinquent. In addition, Defendant Naasz suspended him from school for two days.

151. Defendants initially refused to suspend the Caucasian child who had hit John with

the metal-edged ruler until two days later, after John's mother threatened to file charges against

the boy as the school had done against her son. At that point, Defendant Naasz gave the

Caucasian student two days of in-school suspension. On information and belief, the Caucasian

student was required to complete only the first day ofthat punishment.

I.

Josephine "Josie" Traversie

152. While in the 2nd grade, Josephine ("Josie") Traversie qualified for special

educational services. Her school records, however, do not indicate that she ever received them.

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153. In May 2005, when Josie was in the 8th grade at the Winner Middle School, a Native American classmate pushed Josie in a school hallway in between classes. Josie responded by hitting the girl. The altercation took place before Defendant Principal Naasz, who grabbed Josie by the arms and escorted her to a nearby detention room. While Josie waited in the detention room, Naasz interviewed the other student and then contacted the Winner City Police Department and requested that Josie be arrested and prosecuted. He did not seek the arrest or prosecution of the other child.
154. After contacting the police, Defendant Naasz asked Josie to draft and sign an affidavit stating that she had hit the other student. Josie refused and asked to use the restroom. Defendant Naasz told her that she "had" to draft the affidavit and that she could not go to the restroom until she had done so.
155. Josie continued to refuse to draft the affidavit until the police arrived at the school and told her that she had to comply with Defendant Naasz' request. After she completed the affidavit, Defendant Naasz notarized it.
156. Defendant Naasz made no effort to contact Josie's mother to inform her that her child was being arrested.
157. Before the police transported Josie to the police station, Principal Naasz gave them Josie's affidavit, an affidavit he had drafted describing Josie's role in the altercation, and an affidavit from the other student. In his affidavit, Naasz characterized Josie's initial refusal to draft and sign the affidavit as insubordination.
158. The police transported Josie to the police station where they booked her and informed her of her right to remain silent and her right to an attorney.
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159. Josie's family subsequently was served with a Delinquency Petition charging Josie with Disorderly Conduct and Disturbance of School. Josie's affidavit and the other statements were attached to and incorporated into the Petition.
160. When Josie appeared in court, the juvenile court judge read Josie's confession out loud and Josie admitted to hitting the other girl. On information and belief, neither the court nor the prosecutors introduced any other evidence against Josie. Josie was not represented by counsel.
161. Josie was adjudicated delinquent and sentenced to 12 months probation. In addition, Principal Naasz suspended her from school for two days.
162. Defendants subsequently requested Josie's arrest a second time after she pulled a fire alarm at school. In addition, they reported her to her probation officer twice, once for being absent from a class that she was already failing and for which she would not receive credit, and again for grabbing the backpack of a Caucasian student who had spit on Josie. Both times, Josie was taken from the school to a juvenile detention facility on an emergency basis without a hearing and without informing her parents, where she remained incarcerated for several days. On information and belief, the Caucasian student who spit at Josie was not punished, even though school policies call for a minimum one day of suspension for encouraging a fight.
163. In March 2006, Josie was sent to the principal's office and cited for "profanity" when she laughed in class after a teacher accidentally said a curse word. Caucasian children in her class also laughed but were not punished.
164. Josie's older sister, Amanda, who was enrolled in Winner High School and had been subjected to Defendants' racially discriminatory disciplinary policies and unlawful coerced-
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confession practices, dropped out of school the day after Josie was transported from school to a detention facility.
J. Taylor White Buffalo 165. In April2004, when Taylor was 11 years old and in 51h grade, he was playing basketball with two Caucasian students and another Native American classmate. During the course of the game, one of the Caucasian classmates refused to turn the ball over to Taylor and instead, pushed Taylor with the ball. Although Taylor asked the boy to stop, he pushed Taylor twice more. Finally, Taylor hit him once in the face with his fist. The Caucasian classmate ran and told a teacher. 166. The teacher escorted Taylor to Defendant Principal Naasz's office. Upon learning of the incident, Defendant Naasz summoned the Winner Police Department and requested that Taylor be arrested and prosecuted with criminal misconduct but not the Caucasian student. 167. Defendant Principal Naasz placed Taylor in a small conference room next to his office. Naasz used his position of authority and the fact that Taylor was only 11 years old, and Taylor's respect for authority and fear of further punishment to compel Taylor to draft and sign an affidavit in which he admitted to hitting the Caucasian student. Taylor believed that he would be suspended from school if he did not comply with the Principal's commands. Once the affidavit was complete, Defendant Naasz notarized it. 168. While the police officers were at the school, Defendant Naasz gave them Taylor's affidavit, an affidavit that Defendant Naasz had drafted attesting to Taylor's guilt and a statement from the Caucasian student.
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169. Defendant Naasz did not refer the Caucasian student to law enforcement. When Taylor's mother asked why not, Naasz claimed that pushing did not constitute fighting. Although Taylor had not been involved in any prior disciplinary incidents at school, Principal Naasz told Taylor's mother that the District had to send him to court because if they did not, he would "kill someone next."
170. Taylor's family was served with a Summons and Delinquency Petition charging Taylor with Simple Assault and Disturbance of School on the basis ofthe single punch. Attached to and incorporated into the Petition were the affidavits Defendant Naasz had given to the police.
171. Taylor admitted to the charges against him. He was placed on probation for 90 days and ordered to complete between 10 and 20 hours of community service.
172. In addition, Defendant Naasz gave Taylor two days of in-school suspension and noted in Taylor's school records that he was the "instigator" ofthe incident, although school records confirm that Taylor hit the child only after the child pushed Taylor a couple of times first. On information and belief, Defendant Naasz did not punish the other student, even though the school's written policies call for a minimum two days of suspension for pushing.
COUNT ONE: FIFTH AMENDMENT CLAIM 173. Paragraphs one through 172 are incorporated herein by reference the same as though pleaded in full. 174. Defendants' pattern, practices and customs as alleged in this Complaint have violated and continue to violate the Plaintiffs' right against self-incrimination under 42 U.S.C. §
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1983 and the Fifth Amendment to the United States Constitution, as applied to the States by the Fourteenth Amendment.
COUNT TWO: FOURTEENTH AMENDMENT DUE PROCESS CLAIM 175. Paragraphs one through 172 are incorporated herein by reference the same as though pleaded in full. 176. Defendants' practices, policies and customs as alleged in this Complaint have violated and continue to violate rights guaranteed to Plaintiffs by 42 U.S.C. § 1983 and the Due Process Clause of the Fourteenth Amendment to the United States Constitution, which prohibits the state from coercing confessions.
COUNT THREE: FOURTEENTH AMENDMENT EQUAL PROTECTION CLAIM
177. Paragraphs one through 172 are incorporated herein by reference the same as though pleaded in full.
178. Defendants' practices, policies and customs as alleged in this Complaint have violated and continue to violate rights guaranteed to Plaintiffs by 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, which prohibits the state from discriminating against individuals on the basis of race.
COUNT FOUR: TITLE VI CLAIM 179. Paragraphs one through 172 are incorporated herein by reference the same as though pleaded in full. 180. Defendants' practices, policies and customs as alleged in this Complaint have violated and continue to violate rights guaranteed to Plaintiffs under Title VI of the Civil Rights
40

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Act, 42 U.S.C. § 2000d, which prohibits recipients of federal funding from discriminating against individuals on the basis of race.

PRAYER FOR RELIEF

WHEREFORE the Plaintiffs respectfully request that the Court:

1. Assume jurisdiction over this matter;

2.

CertifY this action as a class action pursuant to Fed. R. Civ. P. 23;

3. Declare that Defendants' actions and inactions, including Defendants'

perpetuation of the racially hostile educational environment at the Winner Middle

and High School, Defendants' racially discriminatory disciplinary practices and

procedures, and Defendants' custom and practice of coercing confessions from

students referred to law enforcement, violate rights guaranteed to the Plaintiff

Class by 42 U.S.C. § 1983, the Fifth and Fourteenth Amendments to the United

States Constitution, and Title VI of the Civil Rights Act, 42 U.S.C. § 2000d;

4.

Enjoin any further violations of Plaintiffs' constitutional and statutory rights;

5.

Order Defendants to expunge from all records in their custody or under their

control confessions coercively and unlawfully obtained from members of the

plaintiff class;

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6. Award the Plaintiffs reasonable attorneys' fees and costs under 42 U.S.C. § 1988; and
7. Grant any other reliefthe Court deems necessary or proper.
Dated this 27th day of March, 2006.
Respectfully submitted,

Of Counsel: Robin L. Dahlberg, Esq. Catherine Y. Kim, Esq.

~(~{1~4')
AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, New York 10004 212-549-2500

 </s> Case 3:06-cv-03007-CBK Document 23 Filed 05/12/06 Page 1 of 43 PageID #: 141

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION

SAM ANTOINE, a minor, by and through

)

LAVINA MILK, his legal guardian;

)

RICHARD CHASING HAWK, a minor, by and )

through ROSE MENDOZA, his legal guardian; )

CHARLES DUBRAY;

)

MINDI FELIX, a minor, by and through

)

DONNA EISENBRAUN, her mother;

)

JESSE MILK, a minor, by and through

)

JOANNE BATES, his mother;

)

DEIDRICK OLD LODGE, a minor, by and

)

through YVETTE IRON HEART, his mother;

)

JENNIFER PENEAUX;

)

JOHNATHON SCRUGGS, a minor, by and

)

through CHRISTINE RINKER, his mother;

)

JOSEPHINE TRAVERSIE, a minor, by and through)

REGINA TRAVERSIE-LAPOINTE, her mother; )

TAYLOR WHITE BUFFALO, a minor, by and )

through DALE AND BEATRICE

)

WHITE BUFFALO, his parents;

)

and all others similarly situated,

)

)

Plaintiffs,

)

)

-versus-

)

)

WINNER SCHOOL DISTRICT 59-2;

)

MARY FISHER, Individually and as

)

Superintendent of the Winner School District;

)

BRIAN NAASZ, Individually and as Principal )

of Winner Middle School; and MIKE HANSON, )

Individually and as Principal of

)

Winner High School;

)

)

Defendants.

)

COMPLAINT
06 Civ. ;3001

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I. PRELIMINARY STATEMENT 1. This class action lawsuit challenges disciplinary policies and practices intended to push Native American children out of the Winner School District in Tripp County, South Dakota, into the juvenile and criminal justice systems. It seeks to compel the Winner School District to eradicate the racially hostile educational environment it has permitted to flourish in its Middle and High Schools for at least the last ten years. In addition, it asks that the District be enjoined from engaging in racially discriminatory disciplinary practices and from coercing confessions from Native American students for the sole purpose of securing criminal convictions and findings of delinquency. 2. The Winner School District has a long history of intentional racial animosity towards Native American students and their families. As a result of Defendants' racially discriminatory disciplinary practices, the procedures they employ when referring Native American students to law enforcement, and other administrative practices and policies, Defendants have created a racially hostile educational environment in the Middle and High Schools that adversely affects every Native American child who attends those schools. 3. Although the District borders the Rosebud Sioux Indian Reservation, home to over 20,000 Sicangu Sioux, and its student body is roughly 20% Native American, Defendants employ almost no Native Americans as administrators, teachers or staff. They offer one class every two years, and only to High School students, on Native American culture and heritage. They do not encourage Native Americans to participate in extracurricular and after school activities. They permit racially derogatory name-calling, teasing, bullying and pushing to go
2

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unpunished. District administrators and staff have been known to treat Native American parents with open disrespect.
4. Defendants punish Native American students for minor disciplinary infractions more harshly and more frequently than similarly situated Caucasian students. Based on statistics provided by the District, Native American students who attend the Middle and High Schools are more than three times more likely to be suspended and ten times more likely to be referred to the Winner City Police Department than their Caucasian counterparts. During any given school year, more than one third of all Native American Middle and High School students will be suspended. Roughly one out of seven Native American students will be arrested and prosecuted for violating a school disciplinary rule every school year.
5. When referring students to law enforcement, Defendants act as law enforcement agents and coerce students into confessing to criminal wrongdoing in a manner that offends fundamental notions of liberty. Pursuant to a long-standing agreement with the Winner City Police Department and Tripp County State's Attorney's Office, Defendants decide which children to arrest and what charges to file against them. They also generate all information necessary to convict the child. Neither the Police Department nor the State's Attorney's Office conducts independent investigations into the incidents that give rise to the referrals.
6. To obtain a written confession, Defendants isolate the children, many of whom are 10, 11 and 12 years of age, in a conference room or a Principal's office and refuse to permit them to leave, even to use the restroom. While in the conference room or office, Defendants tell the children that they have to draft an affidavit and sign it in front of the School Principal who will then notarize it. Children are not permitted to speak with their parents while drafting the
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affidavit. The School Principals use their positions of authority and the children's relative immaturity, lack of sophistication, fear of additional punishment, and, in some cases, their learning disabilities and emotional fragility to pressure them to comply with the School Principals' demands.

7. The Principals then hand these confessions over to the Winner City Police Department, which gives them to the Tripp County State's Attorneys. The two State's Attorneys, both of whom also serve as Defendants' legal counsel, physically attach these confessions to the delinquency petitions filed against the children.

8. conviction.

The affidavits have no educational purpose. They are obtained to secure a

9.

The District's racially hostile educational environment, racially discriminatory

disciplinary policies, and police-referral customs and practices serve to push Native American

youth out of Winner schools. The students become demoralized and disengaged. They act out in

school, they do poorly academically, they do not attend class, and ultimately they drop out.

Some transfer to faraway districts and boarding schools. Others are incarcerated in juvenile

detention or correctional facilities. Although Native Americans represent nearly a fifth of the

District's student body, only two Native American students graduated from the Winner High

School in the last year for which statistics are available.

10. Plaintiffs, on their own behalf and on behalf of all similarly situated Native American students in Winner Middle School and Winner High School, seek a declaration that the Defendants' policies and practices violate 42 U.S.C. § 1983, the Fifth and Fourteenth Amendments to the United States Constitution and Title VI of the Civil Rights Act, and an

4

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injunction enjoining any further violations. II. JURISDICTION AND VENUE
11. This court has subject matter jurisdiction over the Plaintiffs' claims pursuant 28 U.S.C. §§ 1331 and 1343(a)(4) because this action seeks a remedy under 42 U.S.C. § 1983 and Title VI of the Civil Rights Act, 42 U.S.C. § 2000d. Pursuant to 28 U.S.C. §§ 2201 and 2202, this Court has jurisdiction to declare the rights of the parties and to grant all further relief deemed necessary and proper. Rule 65 ofthe Federal Rules of Civil Procedure authorizes injunctive relief. The Court has authority to award costs and attorneys' fees under 42 U.S.C. § 1988.
12. Venue is proper in this action pursuant to 28 U.S.C. § 1391.
III. PARTIES A. Plaintiffs 13. Plaintiff Sam Antoine is 15 years old and enrolled in the 9th grade at the Winner High School. He is a member of the Rosebud Sioux Tribe. He appears in this action by and through his grandmother, Lavina Milk, who is also his legal guardian. 14. Plaintiff Richard Chasing Hawk is 16 years old and enrolled in the 9th grade at the Winner High School. He is a member of the Rosebud Sioux Tribe. He appears in this action by and through his legal guardian, Rose Mendoza. 15. Plaintiff Charles DuBray is 19 years old and enrolled in the 12th grade in Winner High School. He is a member of the Rosebud Sioux Tribe. 16. PlaintiffMindi Felix is 13 years old and enrolled in the 7th grade at the Winner
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Middle School. She is a member of the Rosebud Sioux Tribe. She appears in this action by and through her mother, Donna Eisenbraun.
17. Plaintiff Jesse Milk is 13 years old and enrolled in the 8th grade in Winner Middle School. He is a member of the Rosebud Sioux Tribe. He appears in this action by and through his mother, Joanne Bates.
18. PlaintiffDeidrick Old Lodge is 14 years old and enrolled in the 91h grade in Todd County, South Dakota. He is a member of the Rosebud Sioux Tribe. He appears in this action by and through his mother, Yvette Iron Heart. Deidrick left the Winner School District in March 2006 because of the policies and practices challenged herein. He would return to the Winner School District if those policies and practices were to change.
19. Plaintiff Jennifer Peneaux is 19 years old and enrolled in the 12th grade in Winner High School. She is a member of the Rosebud Sioux Tribe.
20. Plaintiff Johnathon Scruggs is 15 years old and is in the 71h grade at a public school in Anderson, Indiana. He appears in this action by and through his mother, Christine Rinker, who is a member of the Rosebud Sioux Tribe. John was enrolled in the Winner School District until October 2005, when he moved to Indiana to avoid Defendants' racially discriminatory disciplinary practices. He would return to the Winner School District if it changed its disciplinary policies and practices.
21. Plaintiff Josephine "Josie" Traversie is 15 years old and enrolled in the 91h grade in Winner High School. She is a member of the Rosebud Sioux Tribe and appears in this action by and through her mother, Regina Traversie-La Pointe.
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22. Plaintiff Taylor White Buffalo is 13 years old and enrolled in the 71h grade at the Winner Middle School. He is a member of the Rosebud Sioux Tribe. He appears in this action by and through his parents, Dale and Beatrice White Buffalo.
B. Defendants 23. Defendant Winner School District 59-2 is a properly incorporated school district in Tripp County, South Dakota. 24. The District is governed by the Winner Board of Education, S.D. C.L. § 13-8-1, which has "general charge, direction and management of the schools" within the District. S.D. C.L. § 18-8-39. Pursuant to Winner School District Official School Board Policy File No: 2.08, the Board has "[c]omplete final authority on all matters pertaining to the district's education system, except as prescribed by law." Pursuant to Winner School District Official School Board Policy File No: 2.16, the Board is solely responsible for adopting new policies or changing existing policies. 25. Defendant Mary Fisher is the Superintendent of Winner School District. Together with the Principals of the schools in her district, she has "disciplinary authority over all students while the students are in the school or participating in or attending school sponsored activities whether on or off school premises." S.D. C.L. § 13-32-1. The Winner Board of Education has delegated to her "total responsibility for the school system's administration," Winner School District Official School Board Policy File No: 2. 08, and responsibility for "establish[ing] procedures for dealing with disciplinary problems" within the parameters promulgated by the Board of Education. Winner School District Official School Board Policy, File No: 7-11. She is sued in her official and her individual capacities.
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26. Defendant Brian Naasz is Principal of the Winner Middle School. Together with Defendant Fisher and Defendant Hanson, he has "disciplinary authority over all students while the students are in the school or participating in or attending school sponsored activities whether on or off school premises." S.D.C.L. § 13-32-1. In addition, the Winner Board of Education has delegated to him "the authority to enforce policy and regulations governing student behavior," Winner School District School Board Policy File No: 7.11, and the responsibility to enforce "discipline as necessary, according full due process to students." Winner School District School Board Policy File No: 6. 02. He is sued in his official and individual capacities.
27. Defendant Mike Hanson is Principal of the Winner High School. Together with Defendant Fisher and Defendant Naasz, he has "disciplinary authority over all students while the students are in the school or participating in or attending school sponsored activities whether on or off school premises." S.D.C.L. § 13-32-1. In addition, the Winner Board of Education has delegated to him "the authority to enforce policy and regulations governing student behavior," Winner School District School Board Policy File No: 7.11, and the responsibility to enforce "discipline as necessary, according full due process to students," Winner School District School Board Policy File No: 6. 02. He is sued in his official and individual capacities.
28. For all purposes relevant to this Complaint, Defendants have acted and continue to act under color of state law.
IV. CLASS ACTION ALLEGATIONS 29. Pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2), Plaintiffs bring this action on behalf of themselves and all other similarly situated individuals. Plaintiffs ask the
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Court to certify as a class all Native American students who are currently or will at some time in

the future attend Winner Middle School or Winner High School.

30. This action satisfies all four requirements of Rule 23(a):

a. Numerosity: Joinder of all class members is impracticable because of the

size of the class and the fact that the class includes some members who cannot be

identified with any degree of specificity. Approximately 80 Native Americans enroll in

the Winner Middle and High Schools each academic year. The identity of those who will

attend those two schools in the future cannot be determined, particularly given the fluidity

of the student body population. It is not unusual for a Native American student to enroll

in Winner School District, leave the district, and then re-enroll two or more times during

the course of his or her educational career.

b. Commonality: There are questions of law and fact common to all members

of the class, including, but not limited to, whether Defendants engage in racially

discriminatory disciplinary practices and whether the manner in which signed statements

and affidavits are obtained from class members violates their constitutional rights.

c.

Typicality: The claims of the representative Plaintiffs are typical of those

of the class. Each Plaintiff has been subjected to the racially hostile educational

environment at the Winner Middle and/or High School and Defendants' racially

discriminatory disciplinary policies.

d. Adequacy ofRepresentation: The class representatives and class counsel

will fairly and adequately represent the interests of the class. The class representatives

have no interests in this matter that are antagonistic to other Plaintiffs. Class counsel has

9

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many years of experience in civil rights and class action litigation, has investigated extensively the Winner School District and its disciplinary practices, and has the financial resources to zealously represent the class. 31. Class-wide declaratory and injunctive relief is appropriate under Rule 23(b)(2) because Defendants have acted or refused to act on grounds generally applicable to the class as a whole.
V. FACTS RELATING TO WINNER SCHOOL DISTRICT A. Winner School District 32. The Winner School District is located in Tripp County, a rural county bordering the Rosebud Sioux Indian Reservation in south central South Dakota. According to the United States Census Bureau, Tripp County has a population of approximately 6,000 people, over 11% of whom are Native American. 33. There are six schools in the Winner School District. The three largest are located in the town of Winner: the Winner Elementary School (K through 4th grades), the Winner Middle School (5th through gth grades), and the Winner High School (9th through 12th grades). The remaining three schools are small rural schools, located outside of town: Hamill Rural School, Millboro School and Beaver Creek School. 34. According to the website schooltree.com, the Winner School District currently enrolls approximately 980 students, 19% ofwhom are Native American. <http://southdakota. schooltree. org/district/Winner-School-District-59-2-014 759. html>. The percentage of Native Americans decreases across grades, however, because Native American students leave District schools as they grow older. Thus, 30% of Winner Elementary School's 340 students are
10

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Native American, <http://south-dakota. schooltree. org/public/Winner-Elementary-078560. html>; 15.5% ofthe Winner Middle School's 290 students are Native American, <http://southdakota.schooltree.org/public/Winner-Middle-078562.html>; and 14% ofthe High School's 320 students are Native American, <http://south-dakota.schooltree.org/public/Winner-High078561.html>.
35. The District receives several hundred thousand dollars per year from a variety of federal programs. During the 2004-05 school year, for example, it received over $450,000 pursuant to Titles I (Improving the Academic Achievement of the Disadvantaged), II (Preparing, Training and Recruiting High Quality Teachers and Principals), and IV (21st Century Schools) of the federal No Child Left Behind Act.
B. The District's Maintenance of a Racially Hostile Environment 36. During the last ten years, Defendants have knowingly permitted a racially hostile environment to develop and flourish at the Winner Middle and High Schools by intentionally disciplining students in a racially discriminatory manner as described in supra Section C, using unlawful police-referral policies and practices as described in supra Section D, and by purposefully administering the schools in a manner antagonistic to Native American students and their families, as described more fully below. 37. For example, Defendants refuse to remedy student-on-student racial harassment. Caucasian students frequently call Native American students racially derogatory names, such as "dirty Indian," "black boy," "Indian bitch" or "prairie nigger," and tell them to "go back to the reservation." When students and parents report these incidents to Defendants, Defendants make little effort to stop them. According to its own statistics, the District only punished one child for
11

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racial harassment in 2003-2004 and one in 2004-2005. 38. Similarly, Defendants routinely accuse Native American students of engaging in
gang-related activities when they walk, talk, or stand in a group ofthree or more, wear bandanas, or write "Native Pride" or draw medicine wheels on their notebooks. Caucasian students who engage in similar behavior are not subject to the same accusations. In fact, during a basketball tournament hosted by Winner High School in November 2004, Caucasian students wore bandanas with the school's explicit consent.
39. With the exception of one or two Native American teacher's aides, all seven members of the District's Board of Education, and all 92 administrators, teachers and staff employed by the Winner School District are Caucasian.
40. In August 2002, the District cancelled bus service to "Indian housing," the neighborhood where most Native Americans reside, 1.5 miles from the Winner Middle and High Schools. Until the Rosebud Sioux Tribe began driving children to school in Fall 2005 with a school bus donated by the Lower Brule Sioux Tribe, Native American students whose families did not have cars were often unable to go to school in the winter when the weather was particularly harsh.
41. Few Native American students participate on sports teams or after-school extracurricular activities, such as band, chorus, cheerleading or student government. During the 2003-04 school year, for example, only five Native American High School students and six Native American Middle School students participated in school sports. The High School had twelve athletic teams, each of which had between fifteen and twenty-five members. The Middle School had approximately nine sports teams, each of which also had between fifteen and twenty-
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five members. Native students who have expressed interest in such activities generally do not feel welcome and in some cases have been explicitly denied access.
42. Although the United States Commission on Civil Rights states that for Native American students, the importance of "environments that support their cultural identities" "cannot be overstated," the Winner High School offers only one elective on Native American culture every other year. The Middle School offers no such classes.
43. In 2000, the Office of Civil Rights ofthe United States Department of Education (OCR) intervened in response to community complaints, requiring the Winner School District to revise its disciplinary policies and procedures to eliminate discrimination.
44. In 2002, the Rosebud Sioux Tribal Department of Education sent OCR a letter informing it that the Winner School District was not taking the requisite steps.
45. In June 2004, OCR withdrew its monitoring efforts, relying on false and misleading evidence provided by the District.
46. In June 2005, fourteen Native American families filed another complaint with OCR, documenting the persistence of discrimination in Winner School District. OCR did not respond until nine months later, by which time most of the complainants had left the District, either dropping out of school altogether, incarcerated in a detention facility, or transferring to another district.
47. Defendants have sought to intimidate and silence Native American parents critical of the District's policies and practices.
48. Among other examples, when the members of the Johnson O'Malley (JOM) Board --- a federally mandated body of community-elected Native American parents to oversee
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relations between the community and school administrators--- criticized the District's disciplinary policies and lack of busing, Defendants dissolved the Board. School administrators subsequently convened a new JOM Board without giving notice to all former Board members or the community. Federal regulations require that the Board be elected by majority vote of Indian parents, but, on information and belief, there have been no such elections since 2001.
49. Another Native American mother, who had complained about unfair disciplinary practices, likewise was subject to intimidation by Defendants. Defendants pursued criminal charges against her when her child no longer wanted to attend school, and then threatened to file a Child in Need of Supervision (CHINS) petition against the child.
C. The District's Pattern and Practice of Disciplinine Students in a Racially
Discriminatory Manner 50. The Winner Middle and High Schools' disciplinary rules are set forth in each
school's Student Handbook. The Handbooks list various possible disciplinary infractions, the punishments that may be imposed for each (e.g., warnings, in-school suspensions and out-ofschool suspensions), and the circumstances under which law enforcement may be notified.
51. The Middle School Handbook, for example, states that Middle School administrators will notify local law enforcement of: (a) fights involving "swinging;" (b) falsely pulling fire alarms; (c) tobacco, drugs and alcohol on school grounds; (d) stealing; (e) in certain cases, vandalism; and (f) gang related activities.
52. The High School Handbook states that High School administrators will notify local law enforcement of: (a) fighting ("actual swinging/assault"); (b) drugs and alcohol on school grounds; (c) weapons on school grounds; and (d) gang related activities.
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53. Defendants have always maintained that despite the Handbooks, the Defendant School Principals, either as final policymakers with respect to school disciplinary matters, or under the guidance and supervision of the Defendant Superintendent and/or the Winner Board of Education, retain the discretion to decide whether a student has violated a disciplinary rule and what type of punishment to impose.
54. For at least the last ten years, Defendants have exercised this discretion by intentionally imposing harsher and more frequent punishments on Native American children than on Caucasian children engaging in similar misconduct, and by requesting the arrest and prosecution of Native American students for minor incidents of school misconduct while permitting Caucasian students to engage in more egregious misconduct without involving law
enforcement. 55. For example, Defendant Principals initiated the arrest and prosecution of a 10-
year-old Native American boy who jokingly placed a Caucasian friend in a headlock and laughingly threatened to break the friend's neck. They suspended a Native American student for responding to derogatory racial epithets from a Caucasian student by calling the Caucasian student a "stupid bitch." The Caucasian student had stated, "I guess it is time to throw rocks at greasy Indians," and had called the Native American a "dirty Indian," "fucking crackhead," and "dirty raunchy Indian." They sought to have an 11-year old Native American girl who accidentally pulled a fire alarm declared a juvenile delinquent and placed on probation for one year. They expelled and referred a 12-year old Native American boy to law enforcement for keeping lyrics to rap songs in his locker. They sought the arrest and prosecution of a 12-year old
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Native American boy who had a small rubber-band toy in his pocket and teasingly stated to a Caucasian classmate, "I'll peck you off."
56. At the same time, they did not request the arrest and prosecution of a Caucasian girl who slapped a Native American girl on the face with a belt, or a 12-year old Caucasian boy who struck a severely learning-disabled Native American classmate with a metal-edged ruler, or a 13-year old Caucasian boy who told a Native American boy, "I'm going to kill you," or another 13-year old Caucasian boy who told a 13-year old Native American Middle School student that he wanted "to kill Indians" and that he specifically wanted to see her "blood all over."
57. Statistics set forth in End of Year Discipline Reports prepared by the Defendant School Principals for the Defendant Superintendent confirm that Defendants punish Native American students more harshly and more frequently than their Caucasian counterparts. Native Americans are disproportionately punished for conduct requiring a subjective assessment such as "insubordination." During the 2004-2005 school year, for example, the Middle School suspended more than one in three Native American students for "insubordination," as compared to only one out of every ten Caucasian students. Native American youth are suspended (inschool and out-of-school) more frequently than their Caucasian counterparts. During that same school year, more than half of the Native American Middle School student body was suspended, as compared to only 17% ofthe Caucasian student body. In the High School, although Native American youth represented only 15% of the student body, they received 100% ofthe out-ofschool suspensions in 2003-2004, and 84% of the out-of-school suspensions in 2004-2005.
58. And, Native American youth are far more likely to be arrested at school. In each of the past four years, Defendants have referred for arrest and prosecution an average of one in
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every seven Native American Middle and High School students, but only one in every 70

Caucasian Middle and High School students.

Racial Disparities in Discipline: Winner Middle School

School Year

Number Enrolled

%of Racial Group Suspended for
"Insubordination"

% of Racial Group Suspended

%of Racial Group Referred to Law Enforcement

Cauc.

3% 2001-02
2% 2002-03
3% 2003-04
1% 2004-05

School Year

Racial Disparities in Discipline: Winner High School

Number Enrolled

% of Racial Group Suspended for
"Insubordination"

% of Racial Group Suspended

% of Racial Group Referred to Law Enforcement

59. Given the above statistics, every Native American student enrolled in the Winner Middle and High School faces a substantial likelihood of suspension, arrest and prosecution simply because of his or her race and ethnicity.
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D.

Defendants' Pattern and Practice of Unlawfully Coercin~ Confessions

60. Pursuant to a long-standing agreement with the Winner City Police Department

and the Tripp County State's Attorney's Office, Defendants act as agents oflaw enforcement

after deciding that a particular student should be arrested for school misconduct. They contact

the Winner City Police Department, request that a police officer be sent to the Middle or High

School, specify the crime with which they want the student charged (usually Simple Assault or

Disturbance of School) and compile all the evidence necessary to prosecute and adjudicate the

child a juvenile delinquent. 61. As a part of compiling the necessary evidence, Defendants, pursuant to the same
long-standing agreement referred to above, compel students to confess in writing, under oath, to criminal wrongdoing. In so doing, they engage in conduct that offends fundamental concepts of

fairness. 62. Specifically, they exploit their positions of authority, and the students'
immaturity, lack of sophistication, cultural differences, and in some cases physical and emotional disabilities. Prior to the arrival of the police officers at the school, Defendant Principals isolate the student to be arrested, hand him or her a form entitled "Affidavit" or "Affidavit in Support of Criminal Prosecution," and order him or her to describe the incident giving rise to the arrest and prosecution, and sign the completed form in front of the Principal. The Principals notarize the

completed forms. 63. Alternatively, the Defendant Principals have the student's statement typed and
require the student to sign it, attesting to its accuracy.

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64. Most affidavits and statements consist of a few simple sentences. Students are neither counseled to describe the circumstances leading up to the alleged fight nor to include any mitigating factors or possible defenses.
65. Students are not permitted to leave the Defendant Principals' office or the conference room without the Principals' authorization. Students who do not complete the affidavit or sign the statement are told either that they cannot leave the conference room until they do or that they will have to complete the form at the police station.
66. Students believe that failure to obey the Defendant Principals' instructions can result in additional punishment. In fact, Defendant Principals have characterized a refusal to draft or sign a written statement as "insubordination," a disciplinary infraction that has been punished with suspension, loss of classroom credit, a bad grade, or in some instances, the school's filing of a Child in Need of Supervision (CHINS) petition against the student.
67. Few, if any, students understand the significance of signing the affidavit or the statement. Defendants do not inform the children that these statements will be used against them in delinquency or criminal proceedings. They do not inform the children that they have the right to remain silent. They do not inform the children that they have a right against selfincrimination. Few of the children understand the contours of his or her constitutional rights
68. As a general rule, Defendants do not notify the students' parents of the child's arrest in a timely manner. Although South Dakota Administrative Rule§ 24-07-02-01 permits school officials to arrest a child without notifying parents only where the child poses a continuing threat or danger, few, if any, of these children constitute a continuing threat or danger.
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69. When the police arrive at the school, Defendants hand them the affidavits and any supporting materials. Upon information and belief, the police do not conduct any type of independent investigation into the charges against the children. In most cases, the police never
question the students. 70. The police, in turn, give the affidavits and supporting materials to the Tripp
County State's Attorneys, both of whom serve as legal counsel for Defendant Winner School District. The State's Attorneys physically attach the affidavits and statements to the delinquency petitions served upon the children and their families.
71. In light of their notarized confessions written, many students feel they are precluded from raising mitigating factors or defenses and have no option other than to admit to the charges against them.
72. Defendants do not maintain copies in the children's individual school files; the signed and notarized confessions serve no educational purpose. They serve only a law enforcement function.
73. By delegating to Defendants responsibility for obtaining the confessions, the Winner School District, the Winner City Police Department and the Tripp County State's Attorney's Office circumvent the constitutional protections afforded to individuals accused of criminal misconduct or juvenile delinquency, including, but not limited to, the right to remain silent and the right to consult with an attorney.
E. Harm Suffered by the Plaintiff Class 74. The racially hostile educational environmental resulting from Defendants' unlawfully discriminatory disciplinary procedures, its unlawful law enforcement referral customs
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and its administrative practices interferes with and limits the ability of members of the Plaintiff Class to participate in the educational opportunities afforded by the Winner School District. Targeted because of their race and ethnicity, the self-confidence and self-esteem of Native American students plummet. They express fear and frustration by acting out, talking back, or failing to attend classes, all of which lead to additional suspensions from school and other disciplinary measures. During the 2004-05 school year, two Native American High School students were placed on homebound status by their doctors as a result of the stress from the
constant harassment at school. 75. The academic performance ofNative American students suffers. Children who
had a "C" average while enrolled in the Winner School District have graduated from schools in
less hostile districts with honors. 76. Many students transfer to schools in other counties or simply drop out of school.
Because the area is rural and sparsely populated, there are few educational alternatives. Students wishing to transfer are often forced to leave their families behind and board at their new schools. In some cases, entire families move.
77. Those children adjudicated delinquent frequently find themselves spending months and sometimes years in juvenile detention and correctional facilities. Most are sentenced to between three and twelve months of probation. As conditions of their probation, they must attend school regularly and obey the school's disciplinary rules. If they do not abide by these terms, Defendants report them to their probation officers, who frequently take them into custody and send them, sometimes on an emergency basis without hearing and without notifying the child's parents, to a detention or correctional facility.
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78. Defendants frequently rely on trivial school incidents to report students for violating the terms of their probation. Defendants reported a Native American Middle School student for falling asleep during study hall. They reported a 15-year-old Native American girl for grabbing the backpack of a Caucasian student who spit at her. Both of these children were sent to a juvenile detention or correctional facility.
79. Enrollment statistics confirm that Native American children leave the Winner School District in large numbers after they enter Middle School. Although Native Americans constitute almost a third of the Winner Elementary School student body, they account for 14% of the Winner High School student body. While one in five 9th grade students are Native American, only one in twenty 12th grade students are Native American.
80. During the 2001-2002 school year, the most recent year for which statistics are available, only two (2) Native American students graduated from Winner High School; during the prior year, four (4) graduated.
81. Failure to grant Plaintiffs the relief requested herein will result in continued and
irreparable harm. F. The Challen2ed Actions and Inactions As Defendants' Official Policy 82. For all purposes relevant to this Complaint, Defendants have acted and continue
to with the intent to discriminate against Plaintiffs and members of the Plaintiff class. 83. The practices described herein constitute official policy of the Winner School
District and the Winner Board of Education because they are longstanding and widespread practices about which the Board and Defendant Superintendent knew or should have known, but failed to remedy. In fact, Defendant Fisher's immediate predecessor, David Nicolas, engaged in
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the same racially discriminatory disciplinary and police referral practices while both Superintendent of the Winner School District and Principal ofthe Middle School.
84. Alternatively, these practices constitute official policy of the Winner School District and the Winner Board of Education because they were promulgated by the Defendant Superintendent and Defendant Principals who have final policy making authority on school disciplinary matters pursuant to state law; and/or to whom such authority has been delegated by the Board of Education.
85. Alternatively, these practices constitute official policy of the Winner School District and the Winner Board of Education because they were undertaken pursuant to official policy promulgated by the Board.
86. Alternatively, Defendants are liable for these practices because they have a policy of failing to adequately train or supervise Winner School District officials in the administration of discipline, which foreseeably resulted in the harms described herein. On information and belief, Winner School District and the Winner Board of Education never provided Defendant Superintendent and Defendant Principals with any form of training or supervision regarding the administration of a disciplinary program in the Middle and High Schools.
87. The Plaintiff class has no adequate remedy at law.
VI. FACTS RELATING TO THE INDIVIDUAL NAMED PLAINTIFFS A. Sam Antoine 88. In October 2003, when Sam Antoine was 12 years old and in the 61h grade at the Winner Middle School, he hit a Caucasian classmate who shoved him and called him a "prairie
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nigger." Upon learning of the altercation, Defendant Principal Naasz contacted the Winner Police Department and requested that Sam be arrested and charged with criminal misconduct, but not the Caucasian student. Before this incident, Sam had had no contact with the juvenile justice system.
89. Defendant Principal Naasz sequestered Sam in a conference room near his office and questioned him. He used his position of authority, the fact that Sam was only 12 years old, Sam's respect for authority and Sam's fear of further punishment to compel Sam to draft and sign a statement on a form entitled "Affidavit," in which Sam admitted to hitting the other student. Sam believed that he had no choice but to comply. Defendant Naasz then notarized the affidavit.
90. At no time did Defendant Naasz tell Sam that the affidavit might be used against him in a delinquency proceeding or that he had a constitutionally protected right to remain silent.
91. When police arrived at the school, Defendant Naasz released Sam into their custody. Defendant Naasz did not attempt to contact Sam's grandmother, Mrs. Milk, before releasing him to the Winner City Police Department. In fact, Mrs. Milk only learned of Sam's arrest because she happened to be at the Post Office across the street from the school when she saw the police escorting Sam into a police car.
92. In his own car, Defendant Naasz followed the police officers and Sam to the police station. Once there, he handed the police officers Sam's affidavit, his own affidavit attesting to Sam's guilt, and three other affidavits from students who allegedly witnessed the altercation.
93. A few weeks later, Sam and his family were served with a Delinquency Petition
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charging Sam with Simple Assault and Disturbance of School. Sam's affidavit and the other affidavits were attached to and incorporated into the Petition.
94. On two separate occasions, Mrs. Milk asked Defendant Naasz whether she should retain a lawyer. Both times he said no and explained that Sam's prosecution was "a pretty routine procedure."
95. Without the advice of counsel, Sam subsequently admitted to the allegations in the Petition and was adjudicated delinquent. He was sentenced to six months of probation and community service.
96. The juvenile court judge told Sam's family that if he insisted upon going to trial, he would be found guilty because ofthe affidavits attached to the Delinquency Petition and that he would be removed from Mrs. Milk's custody.
97. From Defendant Naasz, Sam received two days of out-of-school suspension. Sam's school records cite Sam as the "instigator" of the fight, even though they confirm that the Caucasian boy pushed Sam first.
98. On information and belief, the Caucasian student who initiated the fight was neither suspended nor referred to law enforcement, although Defendants' written policies called for a minimum two days of suspension for pushing. When Mrs. Milk complained to Defendant Naasz about the name-calling to which Native American children are subjected at the Middle School and asked why Caucasian children were never punished, Naasz responded: "We can't watch everybody all the time."
B. Richard Chasine Hawk
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99. In September 2003, when he was 12 years old and in the 71h grade at the Winner Middle School, Richard Chasing Hawk and a Caucasian student hit each other after the Caucasian student accused Richard of erasing something from the classroom blackboard. Upon learning of the altercation, Defendant Principal Naasz contacted the Winner City Police Department and requested that both boys be arrested and prosecuted. Police records indicate that Defendant Naasz specifically asked that the boys be charged with Simple Assault. Prior to this incident, Richard had had no contact with the juvenile justice system.
100. Defendant Naasz placed Richard in Defendant Superintendent Fisher's office, and used his position of authority, and Richard's youth, respect for authority and fear of additional punishment to compel Richard to draft and sign an affidavit in which Richard admitted to hitting the Caucasian student. Richard, only 12 years old at the time, believed that he had no choice but to comply. Principal Naasz notarized the affidavit.
101. At no time did Principal Naasz inform Richard that the affidavit would be used against him in a juvenile delinquency proceeding or that he had a right to remain silent.
102. When the police officers arrived at the school to take Richard and the other student into custody, Defendant Naasz gave them Richard's affidavit, an affidavit from the Caucasian student, an affidavit that Defendant Naasz had drafted in which he stated that the two boys had hit each other, and a teacher's affidavit.
I 03. Upon information and belief, the Winner City Police conducted no independent investigation into the incident.
104. One month later, Richard's family was served with a Summons and Delinquency Petition charging Richard with Simple Assault and Disturbance of School. Attached to and
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incorporated by reference into the Petition were Richard's affidavits and the other affidavits compiled by Defendant Naasz.
105. Richard subsequently admitted to the allegations in the Petition and was adjudicated delinquent and sentenced to 90 days probation. At no point during the proceeding was he represented by counsel.
106. The Caucasian student was also adjudicated delinquent and received the same sentence as did Richard. In addition, Defendant Naasz suspended both boys from school for two days.
107. Two months later, Defendant Naasz again requested Richard's arrest and prosecution. Another Native American student, acting out in class with a pencil in his hand, stabbed Richard in the stomach, breaking the skin. Richard hit the boy in response.
108. Defendant Naasz sequestered Richard in Superintendent Fisher's office and handed Richard a form affidavit, stating: "You know what to do." Again, believing that he had no choice but to comply, Richard drafted and signed an affidavit in which he admitted to hitting the other child. Richard's affidavit and three other affidavits compiled by Defendant Naasz were attached to and incorporated into the Delinquency Petition served upon Richard's family.
109. In February 2004, the charges against Richard were dismissed. The other Native American child, however, was adjudicated delinquent and sent to a juvenile correctional facility. Both boys were suspended from school.
C. Charles DuBray 110. Charles is part of a large and close-knit extended family. In November 2000, when Charles was 14 years old and in the Middle School, he and a cousin fought during lunch
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period over a shirt that one of them was wearing. Although the two children lived next door to each other and saw each other on a daily basis, Defendants never contacted their parents in an effort to resolve the dispute.
111. Instead, upon learning of the altercation, Defendant Principal Naasz' predecessor, District Superintendent and Middle School Principal David Nicolas, placed Charles in a conference room next to his office and questioned him. He then used his position of authority, and Charles' youth, respect for authority and fear of additional punishment to compel Charles to draft and sign an affidavit entitled "Affidavit in Support of Criminal Prosecution," in which Charles admitted to hitting his cousin. Charles, 14 years old at the time, believed that he had no choice but to comply. Principal Nicolas notarized the statement.
112. At some point, Principal Nicolas gave Charles' statement to the Winner City Police Department. Upon information and belief, the Winner City Police Department conducted no investigation into the incident.
113. In March 2001, five months after the initial confrontation, Charles' family was served with a Delinquency Petition charging Charles with Simple Assault and Disorderly Conduct. Charles' affidavit was attached to and incorporated into the Petition.
114. Charles admitted to the charges set forth in the Petition and was adjudicated delinquent and sentenced to six months of probation.
D. Mindi Felix 115. Mindi has had an Individualized Education Plan for each of the last eight years. Prior to entering kindergarten, she was diagnosed with developmental delays in speech and cognitive areas. She continues to have notable difficulty with expressive language.
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116. In April2005, when Mindi was in 6th grade at the Middle School, she was playing tag and hit a Caucasian classmate who had scratched and cursed at a Native American friend. Upon learning of the fight, Defendant Principal Naasz contacted the Winner City Police Department to request the arrest and prosecution of the two Native American girls, but not the Caucasian girl. Prior to this incident, Mindi had had no contact with the juvenile justice system.
117. Defendant Naasz sequestered Mindi in his office, interviewed her and recorded the interview on audiotape. He then ordered Mindi to draft and sign an affidavit describing the altercation. Intimidated by Principal Naasz position of authority, confused as to what was happening because she was only in 6th grade and suffers from cognitive and expressive disabilities, and fearing further punishment if she failed to comply, Mindi did as Defendant Naasz requested. Defendant Naasz then notarized the affidavit.
118. The affidavit does not mention the Caucasian student's cursing or scratching or any other mitigating circumstances.
119. Defendant Naasz did not inform Mindi that the affidavit would be used against her in a juvenile delinquency proceeding or that she had the right to remain silent.
120. When the police officers arrived at the school to transport Mindi and her friend to the police station, Defendant Naasz gave them Mindi's affidavit, an affidavit he had drafted describing the altercation and the sworn statements of two other students. On information and belief, the Winner City Police conducted no independent investigation into the incident.
121. Mindi's family was served with a Delinquency Petition charging her with Disorderly Conduct and Disturbance of School. Mindi' s affidavit and the other affidavits supplied by Principal Naasz were attached to and incorporated into the Petition.
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122. Mindi's case was referred to a Court Services Officer for "informal adjustment." Mindi met with the Court Services Officer once. He requested that she complete five hours of community services.
123. Principal Naasz suspended both Mindi and the other Native American girl from school for two days. The Caucasian girl whose actions had precipitated the fight was neither referred to law enforcement nor suspended, although the school's written policies called for a minimum one day of suspension for being involved in a fight.
124. After this incident, Defendant Naasz requested that the Winner City Police Department arrest and prosecute Mindi on two additional occasions for fighting with another Native American classmate. Both times, Defendant Naasz coerced Mindi into writing an affidavit, employing the same methods described above. Both times, the affidavit was used against Mindi in a juvenile delinquency proceeding.
E. Jessie Milk 125. During the 2004-05 school year, when Jesse was in the 71h grade at the Winner Middle School, Principal Defendant Naasz suspended Jesse three times. He was suspended twice for fighting with a Caucasian student who purposefully pushed him. On information and belief, the Caucasian student was not punished, even though the school's written policies call for a minimum two days of suspension for pushing. On the third occasion, Jesse was suspended for mumbling under this breath that a P.E. teacher, who had harassed and belittled Jesse for running slowly during class, was a "motherf----g racist." 126. Discouraged by his treatment at school, Jessie stopped going to class during parts of the 2005-06 school year. Defendant Principal Naasz initiated criminal proceedings against
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Jesse's mother, Joanne, because of the truancy. As a result, a bench warrant for Joanne's arrest was issued. Joanne went to court and was fined $200 and 30 days in jail, both of which were suspended. She was told, however, that she would need to pay the fine and go to jail if Jesse had any more unexcused absences or tardies.
127. In February 2006, Principal Naasz ordered Jesse to remove his jacket that he had tied around his waist. When Jesse objected, pointing to other children permitted to wear jackets tied around their waist, Principal Naasz threatened to punish Jesse for "insubordination." Principal Naasz then called Jesse's mother, Joanne, and informed her that if Jesse were "insubordinate" again, he would file a Child in Need of Supervision petition against Jesse in juvenile court.
F. Deidrick Old Lodee 128. Deidrick is physically disabled and unable to use his right arm effectively. At the age of five and again at the age of nine, he was diagnosed with learning difficulties and attention deficits. He received special educational services until he was nine, at which time the Winner School District, despite his diagnoses, decided he no longer met the criteria for such services. 129. In February 2003, when he was 11 years old and enrolled in 6th grade at the Winner Middle School, two Caucasian 6th grade classmates were wrestling in a school hallway as Deidrick walked by. One of the students pushed Deidrick. The other hit him. In response, Deidrick hit one of the students. Upon learning of the incident, Defendant Principal Naasz contacted the Winner City Police Department and requested the arrest and prosecution of all three students. Before this incident, Deidrick had had no contact with the juvenile justice system. 130. Defendant Naasz sequestered Deidrick in a conference room near his office and
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told him that the other two boys were drafting statements describing what had happened. He ordered Deidrick to do the same. Because ofDeidrick's youth, his respect for authority, his disabilities and his fear of further punishment, Deidrick, only 11 years old at the time, believed he had no choice but to comply.
131. Defendant Naasz then collected all three statements and typed new ones. He ordered each of the boys to sign the typed statement. On information and belief, Defendant Naasz did not inform the boys that the statements would be used against them in a delinquency proceeding or that they had the right to remain silent.
132. When the police officers arrived at the school, Defendant Naasz gave them Deidrick's affidavit, along with an affidavit he completed describing the fight and the affidavits ofthe two other students. On information and belief, the Winner City Police conducted no independent investigation into the incident.
133. The police transported Deidrick to the police station, where he remained for three hours before his family was notified of his whereabouts.
134. Deidrick's family subsequently was served with a Delinquency Petition charging him with Disorderly Conduct and Disturbance of School. Deidrick's affidavit and the other statements were attached to and incorporated into the Petition.
135. Deidrick, the only one of the three boys not represented by counsel, admitted to the charges against him and was adjudicated delinquent and sentenced to 90 days probation. In addition, Defendant Naasz suspended all three boys from school.
G. Jennifer Peneaux
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136. In January 2005, when Jennifer Peneaux was in the 111h grade, she got into a fight with another Native American student over a pair ofjeans. Upon learning of the fight, Defendant Principal Hanson contacted the Winner City Police Department and requested that both girls be arrested and charged with criminal misconduct.
137. Defendant Hanson summoned both girls to his office and questioned them separately. He exploited his position of authority, Jennifer's youth, her respect for authority and her fear of further punishment, to compel Jennifer to admit to hitting the other student. He then typed Jennifer's admission into his computer and printed out her statement. He asked Jennifer to sign the statement attesting to its veracity. Jennifer believed that she had no choice but to comply.
138. When officers from the Winner City Police Department arrived at the High School to arrest Jennifer, Defendant Hansen gave them Jennifer's statement.
139. At the police station, officers questioned Jennifer about her involvement in the altercation, but no one informed her of her right to remain silent.
140. A week later, Jennifer was served with a criminal complaint charging her with Disorderly Conduct and Disturbance of School. Because she was 18 years of age at the time of the fight, she was not charged in juvenile court, but in criminal court. Her statement, as well as that of an alleged student witness, were attached to and incorporated into the charging documents.
141. Jennifer pled guilty to the Disturbance of School charge and was convicted, fined, and sentenced to 10 days suspended in the Tripp County Jail and community service. She was not represented by counsel.
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142. Defendant Hanson suspended her from school for two days. H. Johnathon ("John") Scrn&&s 143. John has severe learning disabilities. Prior to entering kindergarten, he was diagnosed as "mildly mentally disabled." An Individualized Education Plan (IEP) prepared by Defendants when John was in the 51h grade states that he is "currently reading at the 1st grade level," "writing is stressful for him," and he "is difficult to understand during conversation speech because he mumbles, drops his endings, and speaks too rapidly." 144. In January 2005, when he was in the 61h grade at the Winner Middle School, a Caucasian classmate hit John with a metal-edged ruler in a dispute over a science project during the last class of the day. John responded by hitting the classmate with his fist. The science teacher reported the incident to Defendant Principal Naasz, who contacted the Winner City Police Department to request John's arrest and prosecution. 145. Before the police arrived at the school, Defendant Naasz placed John in a conference room next to his office and asked him to draft and sign an affidavit describing the altercation. Initially, John refused, but Defendant Naasz told him that the police needed a signed affidavit and that John could not leave the conference room until he had drafted one, even if it took him "all day and all night." Eleven-year-old John believed he had no other choice and complied with Defendant Naasz' request. Once John had completed the affidavit, Defendant Naasz notarized it. 146. When John's mother came to pick him up at the end of the school day, she was unable to locate John. When she asked the receptionist outside of Principal Naasz' office where John was, she was told that John was busy. When she asked to speak to Principal Naasz, she was
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told that he was also busy. School administrators would not let her see John until he had

completed the confession and Defendant Naasz had notarized it.

147. When the Winner City Police Department arrived at the school, Defendant Naasz

directed them to arrest John and not the other student. Defendant Naasz gave the police John's

affidavit, an affidavit that Defendant Naasz had drafted and the affidavits of two other students

who had allegedly witnessed the event.

148. On information and belief, the Winner City Police conducted no further

investigation into the incident. The police officers drove John to the police station in their car

with John's mother following in her car.

149. Two weeks later, John's mother was served with a Summons and Delinquency

Petition, charging John with Disorderly Conduct and Disturbance of School. John's affidavit,

along with the other statements, were attached to and incorporated into the Petition.

150. John ultimately admitted to the charges against him and was adjudicated

delinquent. In addition, Defendant Naasz suspended him from school for two days.

151. Defendants initially refused to suspend the Caucasian child who had hit John with

the metal-edged ruler until two days later, after John's mother threatened to file charges against

the boy as the school had done against her son. At that point, Defendant Naasz gave the

Caucasian student two days of in-school suspension. On information and belief, the Caucasian

student was required to complete only the first day of that punishment.

I.

Josephine "Josie" Traversie

152. While in the 2"d grade, Josephine ("Josie") Traversie qualified for special

educational services. Her school records, however, do not indicate that she ever received them.

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153. In May 2005, when Josie was in the gth grade at the Winner Middle School, a Native American classmate pushed Josie in a school hallway in between classes. Josie responded by hitting the girl. The altercation took place before Defendant Principal Naasz, who grabbed Josie by the arms and escorted her to a nearby detention room. While Josie waited in the detention room, Naasz interviewed the other student and then contacted the Winner City Police Department and requested that Josie be arrested and prosecuted. He did not seek the arrest or prosecution of the other child.
154. After contacting the police, Defendant Naasz asked Josie to draft and sign an affidavit stating that she had hit the other student. Josie refused and asked to use the restroom. Defendant Naasz told her that she "had" to draft the affidavit and that she could not go to the restroom until she had done so.
155. Josie continued to refuse to draft the affidavit until the police arrived at the school and told her that she had to comply with Defendant Naasz' request. After she completed the affidavit, Defendant Naasz notarized it.
156. Defendant Naasz made no effort to contact Josie's mother to inform her that her child was being arrested.
157. Before the police transported Josie to the police station, Principal Naasz gave them Josie's affidavit, an affidavit he had drafted describing Josie's role in the altercation, and an affidavit from the other student. In his affidavit, Naasz characterized Josie's initial refusal to draft and sign the affidavit as insubordination.
158. The police transported Josie to the police station where they booked her and informed her of her right to remain silent and her right to an attorney.
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159. Josie's family subsequently was served with a Delinquency Petition charging Josie with Disorderly Conduct and Disturbance of School. Josie's affidavit and the other statements were attached to and incorporated into the Petition.
160. When Josie appeared in court, the juvenile court judge read Josie's confession out loud and Josie admitted to hitting the other girl. On information and belief, neither the court nor the prosecutors introduced any other evidence against Josie. Josie was not represented by counsel.
161. Josie was adjudicated delinquent and sentenced to 12 months probation. In addition, Principal Naasz suspended her from school for two days.
162. Defendants subsequently requested Josie's arrest a second time after she pulled a fire alarm at school. In addition, they reported her to her probation officer twice, once for being absent from a class that she was already failing and for which she would not receive credit, and again for grabbing the backpack of a Caucasian student who had spit on Josie. Both times, Josie was taken from the school to a juvenile detention facility on an emergency basis without a hearing and without informing her parents, where she remained incarcerated for several days. On information and belief, the Caucasian student who spit at Josie was not punished, even though school policies call for a minimum one day of suspension for encouraging a fight.
163. In March 2006, Josie was sent to the principal's office and cited for "profanity" when she laughed in class after a teacher accidentally said a curse word. Caucasian children in her class also laughed but were not punished.
164. Josie's older sister, Amanda, who was enrolled in Winner High School and had been subjected to Defendants' racially discriminatory disciplinary policies and unlawful coerced-
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confession practices, dropped out of school the day after Josie was transported from school to a detention facility.
J. Taylor White Buffalo 165. In April2004, when Taylor was 11 years old and in 5th grade, he was playing basketball with two Caucasian students and another Native American classmate. During the course of the game, one of the Caucasian classmates refused to turn the ball over to Taylor and instead, pushed Taylor with the ball. Although Taylor asked the boy to stop, he pushed Taylor twice more. Finally, Taylor hit him once in the face with his fist. The Caucasian classmate ran and told a teacher. 166. The teacher escorted Taylor to Defendant Principal Naasz's office. Upon learning of the incident, Defendant Naasz summoned the Winner Police Department and requested that Taylor be arrested and prosecuted with criminal misconduct but not the Caucasian student. 167. Defendant Principal Naasz placed Taylor in a small conference room next to his office. Naasz used his position of authority and the fact that Taylor was only 11 years old, and Taylor's respect for authority and fear of further punishment to compel Taylor to draft and sign an affidavit in which he admitted to hitting the Caucasian student. Taylor believed that he would be suspended from school if he did not comply with the Principal's commands. Once the affidavit was complete, Defendant Naasz notarized it. 168. While the police officers were at the school, Defendant Naasz gave them Taylor's affidavit, an affidavit that Defendant Naasz had drafted attesting to Taylor's guilt and a statement from the Caucasian student.
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169. Defendant Naasz did not refer the Caucasian student to law enforcement. When Taylor's mother asked why not, Naasz claimed that pushing did not constitute fighting. Although Taylor had not been involved in any prior disciplinary incidents at school, Principal Naasz told Taylor's mother that the District had to send him to court because ifthey did not, he would "kill someone next."
170. Taylor's family was served with a Summons and Delinquency Petition charging Taylor with Simple Assault and Disturbance of School on the basis of the single punch. Attached to and incorporated into the Petition were the affidavits Defendant Naasz had given to the police.
171. Taylor admitted to the charges against him. He was placed on probation for 90 days and ordered to complete between 10 and 20 hours of community service.
172. In addition, Defendant Naasz gave Taylor two days of in-school suspension and noted in Taylor's school records that he was the "instigator" of the incident, although school records confirm that Taylor hit the child only after the child pushed Taylor a couple oftimes first. On information and belief, Defendant Naasz did not punish the other student, even though the school's written policies call for a minimum two days of suspension for pushing.
COUNT ONE: FIFTH AMENDMENT CLAIM 173. Paragraphs one through 172 are incorporated herein by reference the same as though pleaded in full. 174. Defendants' pattern, practices and customs as alleged in this Complaint have violated and continue to violate the Plaintiffs' right against self-incrimination under 42 U.S.C. §
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1983 and the Fifth Amendment to the United States Constitution, as applied to the States by the Fourteenth Amendment.
COUNT TWO: FOURTEENTH AMENDMENT DUE PROCESS CLAIM 175. Paragraphs one through 172 are incorporated herein by reference the same as though pleaded in full. 176. Defendants' practices, policies and customs as alleged in this Complaint have violated and continue to violate rights guaranteed to Plaintiffs by 42 U.S. C. § 1983 and the Due Process Clause of the Fourteenth Amendment to the United States Constitution, which prohibits the state from coercing confessions.
COUNT THREE: FOURTEENTH AMENDMENT EQUAL PROTECTION CLAIM
177. Paragraphs one through 172 are incorporated herein by reference the same as though pleaded in full.
178. Defendants' practices, policies and customs as alleged in this Complaint have violated and continue to violate rights guaranteed to Plaintiffs by 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, which prohibits the state from discriminating against individuals on the basis of race.
COUNT FOUR: TITLE VI CLAIM 179. Paragraphs one through 172 are incorporated herein by reference the same as though pleaded in full. 180. Defendants' practices, policies and customs as alleged in this Complaint have violated and continue to violate rights guaranteed to Plaintiffs under Title VI of the Civil Rights
40

Case 3:06-cv-03007-CBK Document 23 Filed 05/12/06 Page 41 of 43 PageID #: 181
Act, 42 U.S.C. § 2000d, which prohibits recipients of federal funding from discriminating against individuals on the basis of race.
PRAYER FOR RELIEF WHEREFORE the Plaintiffs respectfully request that the Court: 1. Assume jurisdiction over this matter; 2. Certify this action as a class action pursuant to Fed. R. Civ. P. 23; 3. Declare that Defendants' actions and inactions, including Defendants' perpetuation of the racially hostile educational environment at the Winner Middle and High School, Defendants' racially discriminatory disciplinary practices and procedures, and Defendants' custom and practice of coercing confessions from students referred to law enforcement, violate rights guaranteed to the Plaintiff Class by 42 U.S.C. § 1983, the Fifth and Fourteenth Amendments to the United States Constitution, and Title VI ofthe Civil Rights Act, 42 U.S.C. § 2000d; 4. Enjoin any further violations of Plaintiffs' constitutional and statutory rights; 5. Order Defendants to expunge from all records in their custody or under their control confessions coercively and unlawfully obtained from members of the plaintiff class;
41

Case 3:06-cv-03007-CBK Document 23 Filed 05/12/06 Page 42 of 43 PageID #: 182

6. Award the Plaintiffs reasonable attorneys' fees and costs under 42 U.S.C. § 1988; and
7. Grant any other relief the Court deems necessary or proper.

K
Dated this ??day ofMarch, 2006.

a:ly~~

Of Counsel:
Robin L. Dahlberg, Esq. 125 Broad Street, 18th Floor New York, New York 10004 (T) 212-549-2602 (F) 212-549-2651
Catherine Y. Kim, Esq. 125 Broad Street, 18th Floor New York, New York 10004 (T) 212-549-2682 (F) 212-549-2651

DANA L. HANNA, ESQ. P.O. Box 500 Rosebud, South Dakota 57570 605-747-2900
~f.~
STEPHEN L. PEVAR, ESQ. AMERICAN CIVIL LIBERTIES UNION FOUNDATION 32 Grand Street Hartford, Connecticut 061 06 (T) 860- 293-1559 (F) 860-293-1061

42

Case 3:06-cv-03007-CBK Document 23 Filed 05/12/06 Page 43 of 43 PageID #: 183
********CERTIFICATE OF SERVICE********
I hereby certify that on the 11th day ofMay, 2006, I mailed the, COPY OF CORRECTED COMPLAINT, to the following addresses below, by depositing a true and correct copy of the foregoing in the United States mail, postage prepaid, in an envelope addressed to said person at his/her last known address, to wit:
Donald P. Knudsen P.O. Box 8045 Rapid City, SD 57709

 </s> Case 3:06-cv-03007-CBK Document 33 Filed 10/20/2006 Page 1 of 5

UNITED STATES DISTRICT COURT

OCT 2 0 2006

DISTRICT OF SOUTH DAKOTA

CENTRAL DIVISION

******************************************************************************

*

SAM ANTOINE, a minor by and through

*

Lavina Milk, his legal Guardian, et al.,

*

CIV 06-3007

*

Plaintiff,

*

*

ORDER AND OPINION

-vs-

* GRANTING CLASS CERTIFICATION

*

WINNER SCHOOL DISTRICT 59-2, et al., * *

Defendants.

*

*
******************************************************************************

Plaintiffs instituted this action contending that defendants punish Native American

students more harshly and more frequently than similarly situated Caucasian students and that the

defendant District maintains a racially hostile educational environment and engages in racially

discriminatory policies, customs, and practices. Plaintiffs seek a declaratory judgment that

defendants' policies and practices violate 42 U.S.C. § 1983, the Fifth and Fourteenth

Amendments to the United States Constitution, and Title VI of the Civil Rights Act. Plaintiffs

further seek an injunction prohibiting any further violations.

Plaintiffs have filed a motion for class certification pursuant to Fed. R. Civ. P. 23(b)(2).

Defendants do not resist class certification.

Federal Rule Civil Procedure 23(a) permits class certification where:

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a); Alpern v. UtiliCorp United. Inc., 84 F.3d 1525, 1539 (8th Cir. 1996). The

four prerequisites for class certification can be referred to as (1) numerosity, (2) commonality, (3)

typicality, and (4) adequacy ofrepresentation. Paxton v. Union National Bank, 688 F.2d 552,

559 (8th Cir. 1982). "An action may be maintained as a class action only if all four prerequisites

Case 3:06-cv-03007-CBK Document 33 Filed 10/20/2006 Page 2 of 5
ofRule 23(a) are satisfied and, in addition, one of the three subsections ofRule 23(b) is met." Pickett v. IBP, 197 F.R.D. 510,513 (M.D. AL 2000). "The burden is on the party who seeks to certify a class to show that the prerequisites of Rule 23 are established." Jd. 1. Numerosity.
Plaintiffs request the certification of a class to consist of: All Native American students currently enrolled or who will in the future enroll in Winner Middle School or Winner High School.
Because the class includes future Native American students, I find that joinder of all members would be impracticable. 2. Commonality.
Rule 23(a) requires "questions of law or fact common to the class." It however "does not require that every question of law or fact be common to every member of the class." Paxton, 688 F.2d at 561. Commonality may be satisfied "where the question of law linking the class members is substantially related to the resolution of the litigation even though the individuals are not identically situated." Paxton, 699 F.2d at 561 (quoting American Finance Sys., Inc. v. Harlow, 65 F.R.D. 94, 107 (D.Md. 1974)). Accord, Christina A. ex rei. Jennifer A. v. Bloomberg, 197 F.R.D. 664, 667 (D.S.D. 2000).
No party has identified any factual issues unique to each proposed class member which would predominate in this litigation. Plaintiffs do not seek damages. The issue to be proved in this litigation is whether the defendants have an illegal policy and practice of discriminating against Native American students. Although each individual member of the class may have had different experiences with regard to discipline at the District's schools, the legal question "linking the class members" - whether an illegal policy and practice of discrimination exists -"is substantially related to the resolution of the litigation." DeBoer v. Mellon Mortgage Co., 64 F.3d 1171, 1174 (8th Cir. 1995). All members of the class seek a declaration that an illegal policy and practice exists and an injunction prohibiting such practice. This is sufficient to establish the requisite commonality. Jd.
2

Case 3:06-cv-03007-CBK Document 33 Filed 10/20/2006 Page 3 of 5
3. Typicality. The Eighth Circuit holds that the typicality requirement of Rule 23(a)(3) "requires a
demonstration that there are other members of the class who have the same or similar grievances as the plaintiff."' Tate v. Weyerhaeuser Co., 723 F.2d 958, 608 (8th Cir. 1983) (quoting Donaldson v. Pillsbury Co., 554 F.2d 825, 830 (8th Cir.1977)); Alpern v. UtiliCor:p United, Inc., 84 F.3d 1525, 1540 (8th Cir.1996). "The burden of demonstrating typicality is fairly easily met so long as other class members have claims similar to the named plaintiff." DeBoer v. Mellon Mortg. Co., 64 F.3d at 1174.
Typicality exists if the proposed class members have the same or similar grievances in that they have been or will be subjected to the same allegedly unlawful treatment as the named plaintiffs. Paxton, 688 F.2d at 562. Plaintiffs' claims are that defendants have a policy or practice of discriminating against Native American students That is the same allegedly unlawful treatment likely to be suffered by the proposed class members. This prong of the rule is satisfied. 4. Adequacy of Representation.
"The adequate representation inquiry involves questions of whether the plaintiffs' counsel are qualified, experienced, and generally able to conduct the proposed litigation." Pickett v. IBP, 197 F.R.D. at 514. I have no doubt that plaintiffs' counsel are qualified and experienced litigators. Defendants do not claim otherwise.
The matter of adequate representation also involves questions whether the plaintiffs are proper class representatives. This court must "evaluate carefully the legitimacy of [a] named plaintiffs plea that he is a proper class representative under Rule 23(a)." In re Milk Products Antitrust Litigation, 195 F.3d 430, 436 (8th Cir. 1999) (quoting General Tel. Co. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). The class representative must have "a sufficient incentive to represent class members" and a desire to "vigorously pursue" the interests of the class. !d. at 437. Each of the named plaintiffs allegedly has been subject to racial discrimination by the District and has a desire to vigorously pursue litigation against the District. There is no doubt that they are representative of class members who allegedly have been or may be treated dissimilarly to Caucasian students.
3

Case 3:06-cv-03007-CBK Document 33 Filed 10/20/2006 Page 4 of 5
5. Rule 23(b) prerequisites. In addition to satisfying the Rule 23(a) conditions precedent to class certification, one of
the following three conditions must be satisfied: (1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. Plaintiffs assert that class certification is appropriate under 23(b)(2). Defendants do not object to a Rule 23(b)(2) class. A Rule 23(b) class is proper here where the only relief sought is declaratory and injunctive relief. In reSt. Jude Medical, Inc., 425 F.3d 1116, 1121 (8th Cir. 2005). Now, therefore, IT IS ORDERED:
4

Case 3:06-cv-03007-CBK Document 33 Filed 10/20/2006 Page 5 of 5

1. This action shall be maintained as a class action on behalf of the following class of

plaintiffs:

All Native American students currently enrolled or who will in the future enroll in Winner Middle School or Winner High School.

2. Class certification is granted for the purpose of litigating all issues in this case,

including:

a. Whether defendants maintain a policy or practice of disciplining Native American students in a racially discriminatory manner in violation of Title VI of the Civil Rights Act and the Equal Protection Clause of the United States Constitution;
b. Whether defendants maintain a policy or practice of coercing confessions from Native American students in violation of the right against self-incrimination and the right to substantive Due Process guaranteed by the United States Constitution; and
c. Whether defendants are deliberately indifferent to the existence of a racially hostile educational environment in violation of Title VI of the Civil Rights Act and the Equal Protection Clause ofthe United States Constitution.

3. No notice to the class is required at this time.

4. Subject to further order of the Court, Sam Antoine, Richard Chasing Hawk, Mindi

Felix, and Jesse Milk, by and through their legal guardians, Deidrick Old Lodge, Johnathon

Scruggs, Josephine Traversie, and Taylor White Buffalo, by and through their parents, Charles

Dubray and Jennifer Peneaux are designated as class representatives. Catherine Yonsoo Kim,

Robin Lee Dahlberg, and Stephen Lane Pevar, of the American Civil Liberties Union, together

with Dana Hanna of the Rosebud Sioux Tribe Attorney General's Office are designated as class

counsel.

~~y Dated this

of October, 2006.

BY THE COURT:

ATTEST:

JOSEPH HAAS, CLERK
:_-s~~J9~

I

DEPUTY

--

(SEAL)

;

~~f3-~~ CHARLESB.KORNMANN United States District Judge
5

 </s> Case 3:06-cv-03007-CBK Document 56 Filed 10/16/07 Page 1 of 3 PageID #: 477

NOTICE OF PROPOSED SETTLEMENT

OF SCHOOL-DISCRIMINATION LAWSUIT

Antoine v. Winner School District

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FILED
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To: All Native American students who will attend the Winner Middle School and the Winner High School in September 2007 or who may attend either school at some
point in the future, and their parents and guardians.

In March of 2006, a lawsuit was filed against the Winner School District on behalf of all Native American students currently attending the Winner Middle School or the Winner High School and all Native American students who will attend either school in the future. The lawsuit, Antoine v. Winner School District, claimed that the School District unlawfully required students to sign affidavits that could be used against them in criminal and juvenile prosecutions; discriminatorily disciplined students on the basis of race; and maintained an educational environment hostile to Native American students and their families. The School District denied any wrongdoing, but has agreed to settle the case.

As a current or future Native American Middle School or High School student, or as the parent or guardian of a current or future Native American Middle School or High School student, you may be affected by this settlement.

This Notice sets forth the terms of the proposed settlement and explains how you can object if you feel the settlement is unfair, or how you can ask questions about the settlement. However, you are not required to take any action.

What you can expect from the settlement

The settlement agreement that is being proposed would ensure that you (and all other Native American students in Winner Middle and High Schools) will be protected in the following ways:

I. School officials at the Middle School and High School shall not require any student to make a statement which could be used against him or her in a juvenile court proceeding or criminal proceeding. If school officials decide to report a ~tudent to the police because of school misconduct, they shall not interview the child unless the child's parent or guardian is present.

2. The School District will hire a Native American "Ombudsperson" from a list of names selected by the Native American community and submitted to the School District by the Rosebud Sioux Tribal Education Department. The Ombudsperson will be a liaison between the Native American community and the School District, especially regarding disciplinary issues. The Ombudsperson will be present every time a principal interviews a Native American child for a disciplinary incident, to ensure that the interview is fair.

Case 3:06-cv-03007-CBK Document 56 Filed 10/16/07 Page 2 of 3 PageID #: 478
3. The School District will hire a Monitor to review all disciplinary incidents to ensure non-discrimination. In selecting the Monitor, a strong preference will be given to Native American applicants.
4. The School District will incorporate Native American culture, history, and language into its mainstream K-12 curriculum, and will also hire a Native American teacher to teach a Native American history, culture, and language class every year at the high school.
5. The School District will work with an Expert to provide training to both students and teachers and faculty on reducing school fights and preventing racial bias.
6. The Middle School and High School shall include Native American parents, selected by the Native American communities, on the Principal's Advisory Committees. These Committees will review all disciplinary incidents four times a year to identify if racial disparities exist, and if so, recommend changes to reduce such disparities.
7. The Monitor will work with Native American parents selected by the Winner/Ideal community, the Rosebud Sioux Tribal Education Department, and staff from the school district, to develop a series of "benchmarks" to improve the district's responsiveness and accountability to the Native American community. The benchmarks will include goals for improving Native American graduation rates, reducing the number of suspensions and police referrals, and inclusion of Native American history, culture, and language into the curriculum, among other goals.
8. Defendants will be bound by the Consent Decree, formalizing this Settlement Agreement, until they satisfy all of the terms of the Agreement satisfy each of the benchmarks developed with assistance from the Monitor, for four consecutive school years. In other words, the Consent Decree and the Court's supervision over the Decree will end only when the School District has remained in compliance with the Decree for four years in a row.
9. As part of the settlement, the School District has agreed to pay to the attorneys who filed this case on your behalf the sum of $100,000.00 to cover their fees and expenses incurred to date. While this represents only a fraction of their actual fees and expenses, your attorneys agreed to accept this amount.
10. You have the right to examine a complete copy ofthe proposed Consent Decree at either the Middle School or High School Principal's office during regular business hours. You may access it at www.winner.k12.sd.us, or write Ana Weibgen whose address is below.
2

Case 3:06-cv-03007-CBK Document 56 Filed 10/16/07 Page 3 of 3 PageID #: 479
;
What to do if you object If you believe that this settlement is unfair or unjust, you, as a member of the Plaintiff Class, have the right to object. Any objections must be received by November 15,2007. You must send your objection to:
Office of the Clerk U.S. Post Office and Courthouse
225 South Pierre Street Pierre, SD 57501
You should be specific about which part of the proposed settlement you object to, and why.
What to do if you have questions If you just have questions about your rights under this settlement or the terms of the settlement, you can write to the attorneys who represented the PlaintiffNative American students and parents in this lawsuit, by sending a letter to:
Ana Weibgen ACLU
125 Broad Street, 181h Floor New York, NY 10004 Status of Settlement
The Judge handling this case, whose name appears below, has not yet approved this settlement. The Judge will not approve it until he has reviewed it and taken into account any objections you may have. He will schedule a hearing to determine if the settlement is fair before it is made official.
Dated this /2_~of0~2007. 7
Judge Charles Kommann U.S. District Court
3

 </s> Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 1 of 18 PageID #: 501

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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION

DEC ·1 '- 2007
~~""~'-v-CLER~K

SAM ANTOINE, a minor, by and through LAVINA MILK, his legal guardian; RICHARD CHASING HAWK, a minor, by and through ROSE MENDOZA, his legal guardian; CHARLES DUBRAY; MINDI FELIX, a minor, by and through DONNA EISENBRAUN, her mother; JESSE MILK, a minor, by and through JOANNE BATES, his mother; DEIDRICK OLD LODGE, a minor, by and through YVETTE IRON HEART, his mother; JENNIFER PENEAUX; JOHNATHON SCRUGGS, a minor, by and through CHRISTINE RINKER, his mother; JOSEPHINE TRAVERSIE, a minor, by and through REGINA TRAVERSIE-LAPOINTE, her mother; TAYLOR WHITE BUFFALO, a minor, by and through DALE AND BEATRICE WHITE BUFFALO, his parents; and all others similarly situated,
Plaintiffs,
V.
WINNER SCHOOL DISTRICT 59-2; MARY FISHER, Individually and as Superintendent of the Winner School District; BRIAN NAASZ, Individually and as Principal of Winner Middle School; and MIKE HANSON, Individually and as Principal of Winner High School,
Defendants.

)

Civ. 06-3007

)

)

)

) Judge Chades B. Kommann

)

)

)

)

)

)

)

)

)

)

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)

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CONSENT DECREE

1

- - - - - - - - - - - - ---- -------~----
Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 2 of 18 PageID #: 502

WHEREAS, on March 24, 2006, Plaintiffs filed this lawsuit, by and through their next friends and on behalf of others similarly situated against Defendants alleging multiple allegations of discrimination, including disparate treatment in school discipline, forwarding students' statements regarding disciplinary matters to law enforcement, and allowing the existence of a racially hostile educational environment. These allegations were detailed in the Complaint referenced as Sam Antoine, et al., vs. Winner School District 59-2, et al., Civ. 06-3007 in the United States District Court, District of South Dakota, Central Division.
Defendants denied each allegation and filed an Answer on April20, 2006. On October 20, 2006, the Court entered an Order pursuant to Fed. R. Civ. P. 23(b)(2) and certified the

litigation as a "class action." WHEREAS to avoid time and expense of a trial, the Plaintiffs and Defendants entered
into mediation before the Honorable Magistrate Judge John E. Simko and have come to an agreement. The Parties hereby submit the following to the Court for approval as a Consent

Decree. The Court having considered all papers filed and proceedings had herein and otherwise

being fully informed in the premises and good cause appearing therefore, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that:

STUDENT AFFIDAVITS

1.

Defendants shall not require any student to make any statement, whether in the

form of a written affidavit or otherwise, that may be used against him or her in a juvenile court

proceeding or criminal proceeding. DISCIPLINARY INTERVIEWS AND POLICE REFERRALS

2

Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 3 of 18 PageID #: 503

2. Once a school official has decided to refer a student to law enforcement as a result of alleged misconduct, that official must: (a) immediately notify an adult family member or guardian of the accused student; (b) promptly cease any further interview of the student until the adult family member or guardian arrives; and (c) inform the student that anything he or she says can be used against him or her in a criminal court and that the student has no obligation to

continue speaking. ANNUAL TRAINING OF STAFF REGARDING STUDENTS' PROCEDURAL DUE PROCESS RIGHTS AND LAW ENFORCEMENT REFERRALS 3. Defendants shall provide annual training, at the beginning of each academic year, to
Winner Middle School and Winner High School staff and faculty, on the constitutional due

process rights of students.

4. Defendants shall request that the Associated School Boards of South Dakota

·-._

provide a non-local legal expert on the constitutional due process rights of students to conduct

this Training. 5. Defendants shall make attendance at this training mandatory for all School Board
members and for all school administrators authorized to make law enforcement referrals. 6. Defendants shall submit the agenda of the training, any written materials distributed
at the training, and a sign-in sheet of all participants of the training to the Monitor within thirty

(30) days of the training.

DISCIPLINARY MATRIX 7. Defendants shall retain an Expert to assist them with the development of educationally sound, objective and non-discriminatory Disciplinary Matrices for the Middle and

High Schools.

3

Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 4 of 18 PageID #: 504
8. The Expert shall be selected by mutual agreement of the Parties. If the Parties cannot agree within thirty (30) days of the entry ofthis Consent Decree, each Party shall submit two (2) names to the Court within forty (40) days of the entry of this Consent Decree and the Court shall select the Expert from among the four names submitted. Preference shall be given to Native American candidates.
9. The matrices developed with the assistance of the Expert shall: (a) eliminate mandatory police referrals, except to the extent required by state law; (b) clearly define discrete categories of misconduct; (c) set forth appropriate consequences for each category of misconduct; and (d) identify the circumstances under which deviations from the punishment dictated by the matrices shall be made. Where appropriate, the matrices shall incorporate the use of traditional Native American practices and tactics as consequences for misconduct.
10. The matrices shall apply equally to all students regardless of race or ethnicity. 11. Defendants shall use their best efforts to have the new matrices in place by the beginning of the 2007-2008 school year.
DISCIPLINARY RECORDKEEPING 12. Defendants shall maintain consistent and accurate records of all disciplinary incidents. 13. The Winner Middle School and the Winner High School shall maintain their records in an identical manner. 14. For each disciplinary incident, the Principals or their designees shall record, in writing, the name, race, gender, and grade of the student; the date, time, and location of the incident; a description of the incident to the extent possible consistent with Paragraph 2; the matrix category within which the misconduct falls; the punishment imposed; whether the
4

Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 5 of 18 PageID #: 505
punishment deviated from the matrix and if so the reason for the deviation; and the staff member who made the initial disciplinary referral.
15. If the incident involved a Native American student and the Native American student was referred by a school official to law enforcement, the Principals or their designees also shall record whether the procedural steps set forth in Paragraph 2 were followed.
16. Defendants shall send a copy of each incident report to the family or guardian of each student involved in the incident within five (5) days of the incident, with any other students' names redacted.
17. Defendants shall submit copies of all incident reports to the Monitor and Plaintiffs' Counsel on a monthly basis for the duration of the Decree.
18. Defendants shall not be responsible for any fees associated with Plaintiffs' Counsel's review of these reports, except as provided for in Paragraphs 71 and 72.
EVALUATIONS FOR STUDENTS WITH THREE OR MORE INCIDENTS OF MISCONDUCT
19. With respect to every student punished three or more times during an academic year, Defendants shall conduct an evaluation of the student, with the participation of the student's parent or guardian, the principal, the Ombudsperson, and the Special Education Coordinator, within ten (10) days of the third disciplinary incident to determine whether the student has particular needs that are causing him or her to misbehave.
20. The Principals or their designees shall record the results of the evaluation in writing and shall include in their reports the date of the evaluation, the names of those who attended, efforts made to contact the parents if the parents were not present, any conclusions reached, and any steps to be taken in the future.
5

Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 6 of 18 PageID #: 506
21. Defendants shall provide copies of the all such reports to the Monitor and to Plaintiffs' Counsel at the end of each month. Defendants shall not be responsible for any fees associated with Plaintiffs' Counsel's review of monitor's reports, except as provided for in Paragraphs 71 and 72.
THE OMBUDSPERSON 22. Defendants shall hire a Native American Ombudsperson by the beginning of the 2007-2008 academic year or within sixty (60) business days of entry of this Consent Decree. The Ombudsperson shall be selected by Defendants from a list of no less than seven persons provided by the Native American community, as communicated to Defendants by the Rosebud Sioux Tribal Education Department ("RSTED"). All persons on the list must meet the legal qualifications for employment by the Winner School District. 23. The Ombudsperson shall be a full-time employee of Winner School District and shall be provided with an office at either the Middle School or the High School. Plaintiffs and Defendants shall collaborate on the job description for the Ombudsperson, and the job description may be amended with the agreement of both parties. 24. The Ombudsperson shall serve as a liaison between the Native American community and the Winner School District, and shall serve as a voice for Native American students and families before the District, particularly with respect to disciplinary issues. 25. The Ombudsperson shall serve on both the Middle School Principal Advisory Committee and the High School Principal Advisory Committee as set forth in Paragraph 32. 26. The Ombudsperson shall be present during every interview of a Native American student by the Principal of the Middle or the High School (or his or her designee) in the Principal's Office for disciplinary purposes.
6

Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 7 of 18 PageID #: 507
27. The Ombudsperson shall prepare a written report for each Native American disciplinary incident. The written report shall include for each disciplinary incident the name, race, gender, and grade of the student; the date, time, and location of the incident; a description of the incident to the extent possible, and any other information the Ombudsperson wishes to report. If the Native American student was referred by a school administrator to law enforcement, the Ombudsperson shall record whether the procedural steps set forth in Paragraph 2 were followed.
28. In addition, the Ombudsperson shall encourage and assist any adult family member or guardian who responded to a call from a Principal concerning the referral of a student to law enforcement to record whether, in the adult family member's or guardian's view, the procedural steps set forth in Paragraph 2 were followed.
29. The Ombudsperson shall submit his/her reports to the Monitor at the end of each month. In addition, the Ombudsperson shall report on his or her activities twice during each academic year, both in writing and in person, to the School Board and to RSTED.
PRINCIPALS' ADVISORY COMMITTEES 30. Defendants shall establish and maintain a Principal's Advisory Committee ("PAC") at both the Middle School and the High School. 31. The PACs shall meet at regular intervals four times during each academic year to review all documentation pertaining to student discipline to determine whether there are any racial disparities in the imposition of discipline. 32. Each PAC shall consist of seven members, one of whom shall be the Ombudsperson. Two of the remaining six members shall be Native Americans selected by the Native American community, with one member from the Ideal community and one member from
7

Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 8 of 18 PageID #: 508
the Winner housing community. No individual other than the Ombudsperson may serve on both PACs.
33. Defendants shall arrange for the Interwest Equity Assistance Center ("Interwest") to provide, at the beginning of each academic year, training and orientation to all PAC members on their duties and responsibilities.
34. The PACs shall report the results of their reviews in writing to the School Board, the Monitor, and Plaintiffs' Counsel. Each report shall state the date of the meeting, the names ofPAC members who attended, the documents reviewed, the conclusions reached, and the rationale for those conclusions.
35. Defendants shall not be responsible for any attorneys' fees associated with Plaintiffs' Counsel's review ofthese PAC reports, except as provided for in Paragraphs 71 and 72.
36. Defendants shall ensure that the PACs are in place by the beginning of the 20072008 academic year, and that each PAC have its first meeting in the Fall of 2007.
TEACHER TRAINING ON INDIAN EDUCATION AND EDUCATIONAL EQUITY 37. Defendants shall train all teachers on culturally-sensitive pedagogy, with ongoing
training and support. Specifically, defendants shall arrange for the Interwest Equity Assistance Center ("Interwest") to train all administrators and staff on the American Indian Education Professional Development Workshop ("AIEPDW") Program and the Generating Expectations for Student Achievement ("GESA") Program bi-annually or at more frequent intervals if recommended by the Monitor. The initial training shall be conducted as soon as practicable upon establishment of the Benchmarks referred to in Paragraphs 62 through 68 below.
8

Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 9 of 18 PageID #: 509

38. Once an appropriate number of administrators and staff have been trained, the District shall implement the AIEPDW Program and the GESA Program as recommended by

Interwest. 39. Interwest may consult with RSTED in providing these Programs as it deems

appropriate. STUDENT-ON-STUDENT CONFLICT RESOLUTION
40. Defendants shall arrange for Interwest to train all administrators and staff at the Winner Middle and High Schools on the Olweus Anti-Bullying Program and the Aggressors, Victims, and Bystanders Program bi-annually, or at more frequent intervals if recommended by the Monitor. Training on both Programs shall be conducted as soon as practicable after the establishment of the Benchmarks contemplated by Paragraphs 62 through 68. All administrators and staff who have been trained shall work with Interwest to implement the programs.
NATIVE AMERICAN CLASSES, PROGRAMS AND ACTIVITIES

41. Defendants shall:

a.

Offer an elective one-semester Lakota History, Culture, and Language

Class each academic year at the Winner High School. The class shall be taught by a

Native American teacher. Defendants shall work with RSTED to assist in identifying

appropriate candidates for this position.

b.

Incorporate Lakota history, culture, and language into the mainstream K-

12 curriculum by the beginning of the 2008-09 school year.

c.

In consultation with RSTED, sponsor and promote in-school and after-

school events in the Winner Middle and High Schools focusing on Native American

history, culture and language, such as drum classes or programs, dance classes or

9

Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 10 of 18 PageID #: 510
programs, language classes or programs, Lakota After-School Clubs and/or a school-wide recognition and celebration ofNative American Heritage Month. 42. Defendants shall implement the requirements of the new South Dakota Indian Education Act.
INCREASING THE NUMBER OF NATIVE AMERICAN EMPLOYEES 43. Defendants shall improve the numbers ofNative Americans on the District's staff and faculty, consistent with the Benchmarks developed under Paragraphs 62 through 68.
IMPROVING PARENTAL PARTICIPATION 44. In collective bargaining sessions with the teachers' union, Defendants shall advocate for holding Parent-Teacher conferences at the 4-H Building once per semester. Defendant shall provide food at these Parent-Teacher conferences. 45. Defendants shall work with an Expert such as Interwest to develop and implement steps to improve parental participation in Winner School District's educational community. 46. Defendants must organize at least one activity per academic year to bring families of different cultures together to the school for social purposes.
LOCAL INDIAN EDUCATION COMMITTEE ("JOM BOARD") 47. The Parties acknowledge that the Local Indian Education Committee (also known as the "JOM Board") is not Defendants' Committee, but rather the Native American community's Committee. 48. Defendants shall comply with all federal laws, rules, and regulations regarding the Local Indian Education Committee under the Johnson O'Malley Act. 49. The Local Indian Education Committee shall develop its own charter and by-laws as it is entitled to pursuant to federal law.
10

Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 11 of 18 PageID #: 511

50. Defendants shall refrain from establishing the Local Indian Education Committee's

meeting agendas, budgets, and membership. Winner School District staff shall not run meetings

of the Local Indian Education Committee.

THE ROSEBUD SIOUX TRIBAL EDUCATION DEPARTMENT

51. The Winner School Board shall have a standing place for the RSTED on the agenda

of its first regular meeting every month. RSTED shall decide, at its discretion, whether to make

a formal appearance at the meeting. If it decides to make such an appearance, it shall follow all

regular Board procedures, including the submission of a letter briefly summarizing its

presentation. 52. Defendants shall invite a representative from RSTED to the annual School Board

retreat.

-

53. The President of the Winner School Board and the Superintendent shall make a presentation to the Rosebud Sioux Tribal Education Committee each academic year.

54. By the beginning of the 2007-08 academic year, the Winner School District shall

enter into a Memorandum of Understanding with RSTED. The Memorandum of Understanding

shall include how the Defendants shall obtain advice and guidance of the RSTED regarding

Indian culture programs and curriculum development, the confidentiality of educational records

disclosed to RSTED pursuant to this Consent Decree, and any other matters in which RSTED's involvement is either suggested or required by this Consent Decree. The memorandum will also

provide the RSTED with the Winner School Board procedures which should be followed if

RSTED decides to make an appearance as contemplated in Paragraph 51.

THE- MONITOR

11

Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 12 of 18 PageID #: 512

55. Defendants shall contract with a Monitor who shall oversee Defendants' implementation of the Consent Decree and shall facilitate the development of Benchmarks that

Defendants must meet to exit from the Consent Decree. 56. The Monitor shall be certified as a No Child Left Behind Act supplemental service
provider, certified by the United States Department of Education Institute of Education Sciences,

and if possible, a Native American. 57. The Monitor shall be selected by mutual agreement of the Parties. If the Parties
cannot agree on the Monitor within forty-five (45) days of the entry of the Consent Decree, each Party shall submit two names for potential Monitors to the Court within fifty-five (55) days of entry of this Consent Decree, and this Court shall decide from among the four candidates

submitted, giving a strong preference to Native Americans.

-

58. The Monitor shall conduct on-site reviews twice a year for the life of the Consent Decree, to measure progress toward and achievement of the Benchmarks, as well as to consider

and/or facilitate modification of Benchmarks where appropriate. Each full year of substantial

compliance with the terms of this Consent Decree, including all Benchmarks, will reduce the

number of the following year's on-site investigations to one. 59. The Monitor shall report quarterly to the Parties and the Court regarding overall
compliance and make recommendations as needed to reach Benchmarks. Defendants shall not be responsible for any fees associated with Plaintiffs' Counsel's review of Monitor's reports,

except as provided for in Paragraphs 71 and 72.

60. The Monitor shall work with RSTED throughout the monitoring process. 61. Defendants shall be responsible for all costs associated with the Monitor and the

Monitor's functions.

12

Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 13 of 18 PageID #: 513

BENCHMARKS

62. The Benchmarks to be developed shall address the following: (1) improving Native American graduation rates; (2) racial disparities in suspensions and police referrals; (3) reduction in overall number of suspensions and referrals; (4) reduction in Native American transfer and dropout rates; (5) improvement ofNative American academic achievement; (6) reduction in Native American truancy and tardiness; (7) improvement ofNative American parental participation in school meetings and events; (8) improvement ofNative American participation in extracurricular activities; (9) improvement of school climate for Native American students, as measured by student perceptions of fairness of discipline, whether they feel their school is responsive to them, and whether they feel they are an important part of the school community; (10) inclusion ofNative American culture, history, and language in the curriculum; and (11)

-

accountability for all finances related to Native American students. 63. The Monitor shall conduct initial research and an on-site evaluation during the

summer of 2007 or within sixty (60) business days of being selected as the Monitor to assist in

the development of Benchmarks. This project shall include a review of data from the School

District, including all financial data, interviews with parents, students and other members of the

Native American community, and consultation with RSTED. The Parties, in good faith, will

provide the monitor access to all information requested and facilitate meetings with all persons

deemed appropriate to interview. 64. Using data gathered from the initial research and evaluation, the Monitor shall
engage in a "co-construction process" to develop the Benchmarks and establish baselines against which progress can be measured. The co-construction process consists of convening stakeholders to take part in collaborative decision making through equal voice and consensus

13

Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 14 of 18 PageID #: 514
principles. The co-construction process shall be undertaken by an eight- to ten- person group with representatives from the following: Winner School District staff and faculty, Winner School Board, RSTED, and the Native American Winner and Ideal communities. Each stakeholder group shall select its own representatives. Counsel for the Parties may attend those group meetings, but shall not be considered stakeholders. Defendants will not be responsible for Plaintiffs' attorneys' fees if they choose to attend any monitor's meetings or the "co-construction process."
65. The Parties recognize that in some instances, the Benchmarks will be the successful implementation in good faith of a program, such as the Olweus Bullying Prevention Program, whereas in other situations, the Benchmarks will be that of achieving a specific outcome, such as increasing the graduation rate of Native American students to a specific level. In other words, depending on the context, a Benchmark could be expressed in the form of a program, task, number, or a percentage.
66. If it appears, during the implementation phase of this Consent Decree, that a Benchmark developed during the initial co-construction process should be modified or amended, the Monitor shall re-convene the stakeholders identified in Paragraph 64 for the purpose of deciding upon that modification or amendment. Modifications or amendments may be warranted if a program mandated by the Consent Decree proves to be ineffective or if a particular percentage established as an initial Benchmark is subsequently deemed to be too high, too low or in need of adjustment.
67. Each Party shall accept the Benchmarks developed through the co..:construction process unless it believes that a Benchmark is unrealistic, unreasonable, or will likely be ineffective, in which case that Party may petition the Court to alter that Benchmark.
14

Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 15 of 18 PageID #: 515

68. When considering a challenge to a Benchmark, the Court shall defer to the expertise of the Monitor unless the Court is convinced that the Benchmark is indeed unrealistic, unreasonable, will likely be ineffective, or is arbitrary and capricious. In making this determination, this Court shall take into account the overall goals of this Consent Decree, which are to ensure that Native American students are treated equally with all other students and with appropriate cultural sensitivity, as well as the educational and pedagogical needs of Winner

School District.

IMPLEMENTATION TIME TABLE

69. Teacher training and implementation of the programs mandated by Paragraphs 37

through 41 of the Consent Decree shall begin immediately or as soon as practicable after

development of Benchmarks and establishment of measurement baselines.

-

ATTORNEYS' FEES AND COSTS 70. Defendants shall pay $100,000 to Plaintiffs' Counsel in attorneys' fees and costs.

71. Notwithstanding any other provision of this Consent Decree, if Plaintiffs

successfully move to hold Defendants in contempt for failure to comply with any term of the

Consent Decree or any benchmark established pursuant to the Consent Decree, Plaintiffs are

entitled to reasonable attorneys' fees and costs incurred in connection with that motion.

72. Plaintiffs reserve the right to petition for attorneys' fees and costs associated with

the defense of a motion to terminate the Consent Decree pursuant to Paragraph 77 below, if that

motion is unsuccessful. Defendants reserve the right to challenge such a petition.

MEDIA RELATIONS

15

Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 16 of 18 PageID #: 516

73. The Parties shall issue one joint press release announcing the Consent Decree, with no additional press release to be issued by either Party with respect to the settlement of this

lawsuit. DISCLOSURES OF EDUCATION RECORDS
74. This Consent Decree constitutes a court order authorizing Defendants to disclose information protected by the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g(b)(2)(B) for the purpose of effectuating this Consent Decree to (a) the Monitor; (b) RSTED; (c) Interwest; (d) any other Expert retained pursuant to this Consent Decree; (e)

Plaintiffs' counsel; and (f) PAC members.

75. Each of the entities and/or individuals receiving information protected by FERPA

pursuant to Paragraph 74 shall enter into a confidentiality agreement with Defendants prior to

-

receiving such records, consistent with 20 U.S.C. § 1232g(b)(4)(B). RETENTION OF JURISDICTION AND ENFORCEMENT OF CONSENT DECREE

76. This Court shall retain jurisdiction over all matters relating to the implementation

and enforcement of the Consent Decree. 77. This Consent Decree shall remain in effect until Defendants have complied with all
Benchmarks, for four consecutive school years, at which time the Consent Decree shall automatically terminate. Defendants may, however, move for termination of the Consent Decree if they believe that they have substantially complied with both the Consent Decree and the

benchmarks for four consecutive years. MISCELLANEOUS PROVISIONS
78. Failure by a Party to enforce any provision of the Consent Decree will not be construed as a waiver of the Party's right to enforce other provisions of the Consent Decree.

16

Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 17 of 18 PageID #: 517

79. Terms of this Consent Decree shall be binding upon the Parties hereto, their agents,

their successors-in-interest and their assigns. 80. This Consent Decree only affects the Parties to this action. 81. If any provision of this Consent Decree is declared void and/or unenforceable by
any court of competent jurisdiction, for any reason, the remainder of the Consent Decree shall

remain in full force and effect. 82. All undersigned counsel ofrecord for the Parties has the authority to enter into and
execute this Consent Decree on behalf of their clients.

D on the dated indicated below:

-- ~~-~ ~---

_,.

DANA HANNA

Date: December 10, 2007
PO Box 3080 Rapid City, SD 57709

CATHERINE YONSOO KIM

ROBIN DAHLBERG

AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 181h Floor New York, NY 1004

Date: December 10, 2007
SARA FRANKENSTEIN
GUNDERSON, PALMER, GOODSELL & NELSON, LLP 440 Mt. Rushmore Road P.O. Box 8045 Rapid City, South Dakota 57709-8045
COUNSEL FOR DEFENDANTS

STEPHEN PEVAR

AMERICAN CIVIL LIBERTIES UNION 32 Grand Street Hartford, CT 06106

COUNSEL FOR PLAINTIFF CLASS

Pursuant to stipulation, and for good cause shown, IT IS SO ORDERED.

17

---------------------~-
Case 3:06-cv-03007-CBK Document 64 Filed 12/10/07 Page 18 of 18 PageID #: 518

/0 ~of Dated this

December, 2007.

BY THE COURT:
~/M~---CHARLESB.KORNMANN United States District Judge

ATTEST:

18

 </s> Case 3:06-cv-03007-CBK Document 66 Filed 06/02/08 Page 1 of 2 PageID #: 539

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION

SAM ANTOINE, a minor, by and through

)

LAVINA MILK, his legal guardian;

)

RICHARD CHASING HAWK, a minor, by and )

through ROSE MENDOZA, his legal guardian; )

CHARLESDUBRAY;

)

MINDI FELIX, a minor, by and through

)

DONNA EISENBRAUN, her mother;

)

JESSE MILK, a minor, by and through

)

JOANNE BATES, his mother;

)

DEIDRICK OLD LODGE, a minor, by and

)

through YVETTE IRON HEART, his mother;

)

JENNIFER PENEAUX;

)

JOHNATHON SCRUGGS, a minor, by and

)

through CHRISTINE RINKER, his mother;

)

JOSEPHINE TRAVERSIE, a minor, by and

)

through REGINA TRAVERSIE-LAPOINTE

)

her mother; TAYLOR WHITE BUFFALO,

)

a minor, by and through DALE AND BEATRICE )

WHITE BUFFALO, his parents; and all others )

similarly situated,

)

)

Plaintiffs,

)

)

V.

)

)

WINNER SCHOOL DISTRICT 59-2;

)

MARY FISHER, Individually and as

)

Superintendent of the Winner School District;

)

BRIAN NAASZ, Individually and as Principal )

of Winner Middle School; and MIKE HANSON, )

Individually and as Principal of Winner High

)

School,

)

)

Defendants.

)

Civ. 06-3007
STATUS REPORT- MONITOR'S FIRST QUARTERLY REPORT

Pursuant to Paragraph 59 of the Consent Decree (Docket No. 64), attached please find

Action Consulting and Evaluation Team (ACET), Inc.'s first quarterly report, with Exhibits A

through E.

Case 3:06-cv-03007-CBK Document 66 Filed 06/02/08 Page 2 of 2 PageID #: 540

Defendants are authorized to state that the Plaintiffs do not oppose and otherwise join in
this Status Report. Respectfully submitted this 2nd day of June, 2008. GUNDERSON, PALMER, GOODSELL & NELSON, LLP

By: /s/ Sara Frankenstein Donald P. Knudsen Sara Frankenstein P.O. Box 8045 Rapid City, SD 57709-8045 (605) 342-1078 sfrankenstein@gpgnlaw.com

CERTIFICATE OF SERVICE

I hereby certify that on the 2nd day of June 2008, I e-filed a true and correct copy of the Status Report to:

Dana Hanna PO Box 500 Rosebud, SD 57570 dhanna@midconetwork.com

Stephen L. Pevar ACLU 32 Grand St. Hartford, CT 061 06 pevaraclu@aol.com

Catherine Kim Robin Dahlberg ACLU 125 Broad Street New York, New York 10004 ckim@aclu.org rdahlberg@aclu.org

GUNDERSON, PALMER, GOODSELL & NELSON, LLP

By: /s/ Sara Frankenstein Sara Frankenstein

2

 </s> Case 3:06-cv-03007-CBK Document 68 Filed 09/10/08 Page 1 of 2 PageID #: 578

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION

SAM ANTOINE, a minor, by and through

)

LAVINA MILK, his legal guardian;

)

RICHARD CHASING HAWK, a minor, by and )

through ROSE MENDOZA, his legal guardian; )

CHARLESDUBRAY;

)

MINDI FELIX, a minor, by and through

)

DONNA EISENBRAUN, her mother;

)

JESSE MILK, a minor, by and through

)

JOANNE BATES, his mother;

)

DEIDRICK OLD LODGE, a minor, by and

)

through YVETTE IRON HEART, his mother;

)

JENNIFER PENEAUX;

)

JOHNATHON SCRUGGS, a minor, by and

)

through CHRISTINE RINKER, his mother;

)

JOSEPHINE TRAVERSIE, a minor, by and

)

through REGINA TRAVERSIE-LAPOINTE

)

her mother; TAYLOR WHITE BUFFALO,

)

a minor, by and through DALE AND BEATRICE )

WHITE BUFFALO, his parents; and all others )

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

WINNER SCHOOL DISTRICT 59-2;

)

MARY FISHER, Individually and as

)

Superintendent of the Winner School District;

)

BRIAN NAASZ, Individually and as Principal )

of Winner Middle School; and MIKE HANSON, )

Individually and as Principal of Winner High

)

School,

)

)

Defendants.

)

Civ. 06-3007
STATUS REPORT- MONITOR'S SECOND QUARTERLY REPORT

Pursuant to Paragraph 59 of the Consent Decree (Docket No. 64), attached please find

Action Consulting and Evaluation Team (ACET), Inc.'s second quarterly report (Progress Report

#1 for Year 2, 2008-09), with Exhibits A through G.

Case 3:06-cv-03007-CBK Document 68 Filed 09/10/08 Page 2 of 2 PageID #: 579
Defendants are authorized to state that the Plaintiffs do not oppose and otherwise join in
this Status Report.
Respectfully submitted this 1Oth day of September, 2008.
GUNDERSON, PALMER, NELSON & ASHMORE, LLP
By: Is/ Jennifer K. Trucano Jem1ifer K. Trucano Donald P. Knudsen Sara Frankenstein P.O. Box 8045 Rapid City, SD 57709-8045 (605) 342-1078 jtrucano@gpnalaw.com
CERTIFICATE OF SERVICE
I hereby certify that on the 1Oth day of September 2008, I e-filed a true and correct copy of the Status Report to:
Dana Hanna PO Box 500 Rosebud, SD 57570 dhanna@midconetwork. com
Stephen L. Pevar ACLU 32 Grand St. Hartford, CT 061 06 pevaraclu@aol.com
Catherine Kim Robin Dahlberg ACLU 125 Broad Street New York, New York 10004 ckim@aclu.org rdahlberg@aclu.org
Is/ Jennifer K. Truano Jennifer K. Trucano
2

 </s> Case 3:06-cv-03007-CBK Document 79 Filed 04/29/14 Page 1 of 5 PageID #: 651

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION

PILED
APR 29 2014
~

******************************************************************************

*

W.I.H. and 1.LH, minors by and through

*

YVETTE IRON HEART, their mother,

*

and all others similarly situated,

*

*

Plaintiffs,

*

*

-vs-

*

*

WINNER SCHOOL DISTRICT 59-2;

*

CIV 06-3007
FINDINGS OF FACT AND CONCLUSIONS OF LAW

BRUCE CARRIER, in his official capacity as *

Superintendent of the Winner School District; *

BRIAN NAASZ, individually and in his official*

capacity as Principal of Winner Middle School; *

and GERALD WITTE, in his official capacity *

as Principal of Winner High School,

*

*

Defendants.

*

*

******************************************************************************

INTRODUCTION

Plaintiffs instituted this action contending that defendants punish Native American

students more harshly and more frequently than similarly situated Caucasian students, that the

defendant District maintains a racially hostile educational environment, and engages in racially

discriminatory policies, customs, and practices. This matter was certified as a class action

pursuant to Fed. R. Civ. P. 23 on behalf of the following class of plaintiffs:

All Native American students currently enrolled or who will in the future enroll in Winner Middle School or Winner High School.

Class counsel and counsel for the defendants filed a joint motion for approval of a

settlement and proposed consent decree. Notices of the proposed settlement and of a fairness

hearing were given to the class members. A consent decree was entered on December 10,2007.

Counsel have filed a joint motion for approval of an amended consent decree. Notices of

the proposed amended consent decree and of a fairness hearing were given to the class members.

Case 3:06-cv-03007-CBK Document 79 Filed 04/29/14 Page 2 of 5 PageID #: 652
No objections were filed. This matter came on for a telephonic fairness hearing on April 10, 2014.
FINDINGS OF FACT 1. Notice of the proposed amended consent decree was given to current class members as ordered. 2. Additional means of notice was also given to ensure all class members had notice. 3. The notice to the class adequately described the terms of the amended consent decree and the process for objecting to the amended consent decree. 4. No class member objected to the entry of the amended consent decree. 5. The original consent decree set forth a plan for developing and implementing certain "benchmarks," i.e., programs or objectives designed to remedy the claimed hostile environment at the Winner Schools. 6. These benchmarks were to be developed and implemented by a group made up of representatives from the Winner School District staff and faculty, the Winner School Board, the Rosebud Sioux Tribal Education Department, and the Native American Winner and Ideal communities. 7. The original consent decree was to remain in effect until defendants complied with all benchmarks for four consecutive school years, at which time the decree would automatically terminate. 8. The benchmark group was authorized to re-convene to modify or amend a benchmark ifit was subsequently deemed to be too high, too low, or in need of adjustment. 9. The benchmark committee met in May and July of2013, and determined that the benchmarks should be revised. The parties have agreed to amend the original consent decree to refer to "benchmarks" as "actions," and "item goals" as "outcome measures." 10. The amended consent decree calls for the District to attempt to meet the entire outcome measures during the 2013-2014 and the 2014-2015 school years. 11. The parties contemplate that if the District meets the entire outcome measures during those two school years, the District will be released from the amended consent decree.
2 


Case 3:06-cv-03007-CBK Document 79 Filed 04/29/14 Page 3 of 5 PageID #: 653

12. If the District meets some, but not all outcome measures, the District will be released

from any further obligation to meet those measures previously met but must continue attempting,

during the next two school years, to accomplish those outcome measures not met during the

previous two school years.

13. The District is required to work in good faith to accomplish the outcome measures.

CONCLUSIONS OF LAW

1. Notice to class members was properly given pursuant to Fed. R. Civ. P. 23(e).

2. Pursuant to Fed. R. Civ. P. 23(e)(2), the district court is required to make a determination

whether the proposed amended consent decree is "fair, reasonable, and adequate."

3. This Court retained jurisdiction over all matters relating to the implementation and

enforcement of the consent decree. As the United States Supreme Court has observed,

At the outset it should be noted that the power of the District Court to modify this decree is not drawn in question ... There is also no dispute but that a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen.

System Federation No. 91 v. Wright, 364 U.S. 642, 647, 81 S.Ct. 368, 371, 5 L.Ed.2d 349

(1961). Further,

We are not doubtful of the power of a court of equity to modify an injunction in adaptation to changed conditions, though it was entered by consent ... Power to modify the decree was reserved by its very terms, and so from the beginning went hand in hand with its restraints. If the reservation had been omitted, power there still would be by force of principles inherent in the jurisdiction of the chancery.

United States v. Swift & Co., 286 U.S. 106, 114,52 S.Ct. 460,462, 76 L.Ed. 999 (1932).

4. The Eighth Circuit has considered Supreme Court precedent and has devised a set of factors the district court must consider when one party to a consent decree seeks a modification:

I

(1) that, where modification and amendment of an existing decree is under

r

consideration, there are 'limits of inquiry' for the decree court and for the

reviewing court; (2) that the inquiry is 'whether the changes are so

important that dangers, once substantial, have become attenuated to a

shadow;' (3) that the movants must be 'suffering hardship so extreme and

unexpected' as to be regarded as 'victims of oppression;' and (4) that there

3 


Case 3:06-cv-03007-CBK Document 79 Filed 04/29/14 Page 4 of 5 PageID #: 654

must be 'nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions.' Placed in other words, this means for us that modification is only cautiously to be granted; that some change is not enough; that the dangers which the decree was meant to foreclose must almost have disappeared; that hardship and oppression, extreme and unexpected, are significant; and that the movants' task is to provide close to an unanswerable case. To repeat: caution, substantial change, unforeseenness, oppressive hardship, and a clear showing are the requirements.

Humble Oil & Refining Co. v. American Oil Co., 405 F.2d 803, 813 (8th Cir. 1969).

Modification of a consent decree should, however, only rarely be granted, and the party seeking modification bears the heavy burden of demonstrating that new and unforeseen conditions have produced such extreme and unexpected hardship that the decree is oppressive.

United States v. City of Fort Smith, 760 F.2d 231,233 (8th Cir. 1985).

5. This is not a case where one party seeks to be relieved ofperceived oppressive conditions.

The parties in this case continue to cooperate to achieve the goals of the original consent decree

and have jointly sought an amendment to the consent decree to continue to remedy the situation

at the Winner Schools. "In a continuing case, a consent decree is not the 'last word' of the courts

in the case, even after the decree itself has become final for purposes of appeaL Rather, a

consent decree is an executory form of relief that remains subject to later developments." Gavin

v. Branstad, 122 F.3d 1081, 1087 (8th Cir. 1997).

6. When the parties to a consent decree propose to amend the decree, the district court must

"discern the underlying purpose of the decree and decide whether modification would be

consistent with that purpose." Wyatt By and Through Rawlins v. Kin&, 793 F.Supp. 1058, 1061

(M.D. Ala. 1992) (quoting Hodge v. Dept. of Housing & Urban Development, 862 F.2d 859, 864

f

(11 th Cir. 1989». The district court must determine "whether the proposed modification is

f

suitably tailored to the changed circumstances." Little Rock School Dist. v. Pulaski County

I

Special School Dist., 56 F.3d 904,914 (8th Cir. 1995).

7. The proposed amendment to the consent decree was contemplated by the original consent

decree as part of continuing monitoring of the District's compliance and the parties desire to

remedy the conditions existing at the time the class action was filed. The amendments are

consistent with the original consent decree's purpose.

4

Case 3:06-cv-03007-CBK Document 79 Filed 04/29/14 Page 5 of 5 PageID #: 655

8. The amended consent decree is fair, reasonable, and adequate to continue to redress the

claims of current and future class members and should be approved. 


~f~ Dated this

of April, 2014. 


BY THE COURT: 


ATTEST: 


JOSEPH HAAS, CLEjQ 


~~~ ~

~ DPUiY

(SE L)

~~~
CHARLES B. KORNMA 

United States District Judge 


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PItIn

UNITED STATES DISTRICT COURT

NOV 0 ~ 2014

DISTRICT OF SOUTI-I DAKOTA CENTRAL DIVISION

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W.I.H. and J.I.H., minors, by and

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through YVETTE IRON HEART, their mother; ) 


and all others similarly situated,

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Plaintiffs,

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v.

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WINNER SCHOOL DISTRICT 59-2;

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BRUCE CARRIER, in his Official Capacity as )

Superintendent of the Winner School District;

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BRIAN NAASZ, Individually and in his Official )

Capacity as Principal of Winner Middle School; )

and GERALD WITTE, in his Official Capacity as )

Principal of Winner High School,

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Defendants.

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Civ.06-3007 
 Judge Charles B. Kommann

AMENDED CONSENT DECREE WHEREAS, Plaintiffs filed the instant class action lawsuit, referenced as Sam Antoine, et. al. v. Winner School District, 59-2 et al., Civ. 06-3007, in the United States District Court, District of South Dakota, Central Division, on March 24, 2006, and Defendants denied each and every allegation of said Complaint on April 20, 2006; and
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Case 3:06-cv-03007-CBK Document 81 Filed 11/04/14 Page 2 of 15 PageID #: 674
WHEREAS, to avoid the time and expense of trial, Plaintiffs and Defendants entered into mediation before the Honorable Magistrate Judge John E. Simko and reached an Agreement that was made binding by the Court's approval of a Consent Decree (hereinafter, "Original Consent Decree") entered on the docket on December 10, 2007, (ECF No. 64), in which the Winner School District ("the District") agreed to undertake various activities to improve the educational experience of Native American students within the District; and
WHEREAS, the Parties acknowledge that certain benchmarks and item goals, developed pursuant to the Original Consent Decree's "co-construction process," should be revised to better allow the District to achieve them, and to ensure implementation of the Original Consent Decree, the Parties have met, conferred, and agreed to amend the Original Consent Decree; and
WHEREAS, the Benchmark Committee ("BMC") met and revised the Parties' benchmarks and item goals in a collaborative multi-day meeting during May and July of2013;
THEREFOR, the Parties have agreed to amend the Original Consent Decree and restate the "benchmarks" and "items," and it is the Parties' intention that this Amended Consent Decree reflect the current and complete Agreement between the Parties, and that this Amended Consent Decree supersede the Original Consent Decree and govern the Parties' actions as of the 2013­ 2014 academic year forward.
The Court having considered all papers filed and proceedings described herein and otherwise being fully informed and good cause appearing therefore. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:
A. Upon execution and entry on the docket of this Amended Consent Decree, the activities previously identified in the Original Consent Decree as "benchmarks" shall be referred to as "actions," and the outcomes previously identified in the Original Consent Decree as "item goals" shall be referred to as "outcome measures." All other definitions contained in the Original Consent Decree are incorporated by reference into this Amended Consent Decree.
B. The District is obligated to attempt to accomplish the actions and outcome measures set by the BMC during the May and July 2013 meetings in Winner delineated in the chart below for the next two (2) years-the 2013-2014 and 2014-2015 school years. If the District meets the entire outcome measures during each of those two (2) years, it shall be released from this Amended Consent Decree in its entirety. lfthe District meets some, but not all, of the outcome measures for each ofthose two (2) years, it shall be released from any further obligation to meet those particular outcome measures (and associated actions), but shall continue attempting to accomplish those outcome measures (and associated actions) it did not reach for an additional two (2) years-the 2015-2016 and 20l6-2017 school years.
C. The BMC shall convene annually to evaluate the success or failure of the actions taken by the District to achieve the outcome measures during the previous year. If the District
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fails to meet any outcome measures at the end ofthe 2013-2014 and 2014-2015 school years, the BMC shall convene in the summer of20] 5 to evaluate the actions taken with

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respect to the failed outcome measures during the previous two (2) years, and propose new or amended actions for the District to implement. The District shall then be obligated to act in good faith to achieve the remaining outcome measures for the next two (2) years the 2015-2016 and 2016-2017 school years ~ by undertaking the modified or originaJ actions approved by the BMC.

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D. Plaintiffs may file a motion to hold the District in contempt of court if, but only if, it is

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apparent that the District is not working in good faith to accomplish the outcome

measures, and the Court may grant Plaintiffs' motion ifthey establish that the District has

failed to act in good faith in attempting to comply with this Amended Consent Decree.

This "good faith" standard shall be defined as: The District shaH use all reasonable

efforts to comply with the outcome measures and their related actions, and if the District

is unable to comply, it must document and explain its basis for believing that there is

nothing it reasonably could have done to comply.

The District must endeavor to accomplish the following outcome measures and actions:

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Topic

Outcome Measures & Actions

Native student graduation rates

Outcome measure: During the next two school years- 2013-2014 and 2014­ 2015 - the Native student graduation rate shall be at least 55%, as measured by the state, and ifit drops below that figure, the BMC shall meet annually to review

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and determine whether further activities are necessary to improve graduation

rates. If the 55% outcome measure is not reached during those two years, the

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District must work in good faith for two more years to reach the Native student graduation rate of 55%.

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Actions: The District shall implement the following activities and provide the monitor with data and information related to each:
• Quarterly communication with the Rosebud Sioux Tribal Education Department ("RSTED") personnel about Native students and their paths to graduation, which includes a report on Native seniors, after every grading period
• Collaboration with RSTED on home visits and in-school student visits • Alternative school • Credit recovery programs, which include the summer and school-year
programs
• Bus transportation for Native students in the Ideal and Winner housing
communities

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Native student suspensions

• Attendance incentives • Early Warning System ("EWS,,)I and its interventions. which include
individual intervention plans, Friday School, teacher-to-student tutoring, and Teacher Assistance Teams
• Academic cOWlseling
• Math and science waivers
Outcome measure: The number of Native students receiving ISS and OSS in both the middle and high schools shall not exceed 40 for the 2013-2014 school year and 36 for the 2014-2015 school year. If these outcome measures are not met. the BMC shall meet annuaUy to review and determine whether further activities are necessary to improve them and the District must work in good faith for two more years to reach the outcome measures set forth above for middle and high school ISS and OSS rates.
Actions: The District shall implement the following activities and provide the monitor with data and information related to each:
• Annual bullying training
• Conflict resolution. to include either the Native American Advocate
and/or parent/guardian
• Mediation, to include either the Native American Advocate and/or
parent/guardian
• EWS and its interventions, which include individual intervention plans.
Friday School, teacher-to-student tutoring, and Teacher Assistance Teams
• Annual cultural sensitivity training for all staff, with assistance from
RSTED personnel
• Individual counseling
• Middle school boys' group, with RSTED assistance
• Middle school girls' groups, to start by the first week of October each
year
• Collaboration with RSTED on home visits
• Additional monitoring coverage of high incident areas at the schools,

I EWS is a districtwide "Response to Intervention" ("RTl") system used to identitY students struggling with academic subjects, behavior or attendance and to match those students with the appropriate resources, supports and interventions to improve in those areas prior to a referral for a special education evaluation and with the goal of decreasing drop out rates and improving graduation rates for the district.

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including physical space between buildings on campus

Outcome measure: The number of Native students at the middle and high schools combined with three or more disciplinary incidents shall not exceed five for the 2013-2014 school year and four for the 2014-2015 school year. (fthese numbers are exceeded, the BMC shall meet annually to review and determine whether further activities are necessary to improve these figures. Ifthey are not improved during those two years, the District must work in good faith for two more years to reach the outcome measures set forth above.

Native students with multiple disciplinary incidents

Actions: The District shall implement the following actions and provide the monitor with data and information related to each:
• Annual bullying training
• Conflict resolution, to include either the Native American Advocate
and/or parent/guardian
• Mediation, to include either the Native American Advocate and/or
parent/guardian
• EWS and its interventions, which include individual intervention plans,
Friday School, teacher-ta-student tutoring, and Teacher Assistance Teams
• Annual cultural sensitivity training for all staff, with assistance from
RSTED personnel

• Individual counseling

• Middle school boys' group, with RSTED assistance

• Middle school girls' groups, to start by the first week of October each

year

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• Collaboration with RSTED on home visits

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• Additional monitoring coverage of high incident areas at the schools,

including physical space between buildings on campus

Outcome measure: During the next two school years - 2013-2014 and 2014­ 2015 - the District shall ensure that its Native American students achieve the

statewide average score for Native Americans on the South Dakota state-

mandated achievement tests at the elementary school, middle school, and high

Student i achievement

school levels. If that figure falls below South Dakota's statewide average at any level, the BMC shall meet annually to review and determine whether further activities are necessary to improve achievement. If achievement is not improved

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during those two years, the District must work in good faith for two more years to

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reach the above outcome measures. Actions: The District shall implement the following activities and provide the

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Case 3:06-cv-03007-CBK Document 81 Filed 11/04/14 Page 6 of 15 PageID #: 678

monitor with data and information related to each:
• EWS and its interventions, which include individual intervention plans,
Friday School, teacher-to-student tutoring. and Teacher Assistance
Teams, with RSTED personnel attending monthly EWS summary
meetings

• SPED referrals

• Breakfast program

• Practice Smarter Balanced testing

• lncentive and awards programs

• Summer school

• Alternative school

• Academic counseling

• Annual cultural sensitivity training for all staff, with assistance from

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RSTED

Native American Advocate Job Description

By the end ofthe 2013-2014 school year, the District shall review and, if necessary, revise the Native American Advocate job description, and roles and responsibilities.

Disciplinary matrix andEWS

By the end of the 2013-2014 school year, the District shall review the disciplinary matrix and, as appropriate, integrate it more closely with interventions from the District's EWS.

Reporting requirements

The District shall continue all existing reporting associated with the disciplinary outcomes and actions for the 2013·2014 and 2014-2015 school years, including but not limited to: disciplinary interviews of Native students, Native American Advocate reporting, disaggregated behavioral infractions, and evaluations of Native students with three or more disciplinary incidents.2 If the District fails to meet the outcome measures for suspensions or mUltiple disciplinary incidents in the 2013-2014 and 2014-2015 school years, the District shall continue reporting the discipline-related activity through the 2015-2016 and 2016-2017 academic years

Extracurricular activities, which include those activities approved by the Winner School Board and which involve a

Outcome measure: During the next two school years - 2013-2014 and 2014­ 2015 the participation rate for Native students in approved and active extracurricular activities, not including the Lakota Club, shall be at least 65% for middle school Native students and 55% for high school Native students. Ifthe rates fall below those figures, the BMC shall meet annually to review and determine whether further activities are necessary to improve it. If the rates are not improved during those two years, the District must work in good faith for two

2 Paragraphs 3-5, inji-a, detail recordkeeping requirements for disciplinary interviews ofNative students. Paragraphs

6-8, infra, detail reporting requirements for evaluations ofNative students with three or more disciplinary incidents.

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coach or advisor, not including Lakota Club

more years to achieve the above Native student participation rates.
Actions: The District shall implement the foJ1owing activities and provide the monitor with data and information related to each:
• A meeting each fall for 6~ 12 students and parents/guardians to allow
coaches, advisors, and the activities' director to present information about middle and high school extracurricular activities and the benefits of participation in them

• A meeting each fall for 6-12 students to present information on how
students can propose starting their own club or activity

• Explore offering an elementary-school-age skills-development clinic or
clinic, for appropriate sports

• Explore ideas to transport students home after school activities and
athletics are finished

• Attempt to recruit a Native volunteer coach for a middle or high school
sports' team, per District policy

• Offer the Lakota Club each year with assistance from personnel at 

RSTED 


• Make Winner facilities available to outside groups for sports camps,
clinics, etc., with advertising assistance from RSTED

• Native American Advocate to send out and collect various documents
related to extracurricular activities, such as flyers, registrations, etc.

Parent participation

• The Superintendent's Advisory Committee ("SAC,,)3 shall collaborate
with Winner/Ideal community officers and youth coordinators on ways to
encourage Native student extracurricular participation
Outcome measure: During the next two school years- 2013-2014 and 2014­ 2015 - the Native parent attendance rate at parent and teacher conferences in the fall and spring semesters at both the middle school and high school shall be at least 50% for each school. If that figure falls below 500Al, the BMC shall meet annually to review and determine whether further activities are necessary to improve participation. If parent participation is not improved during those two years, the District must work in good faith for two more years to reach the outcome measures set forth above.

Actions: The District shall implement the following activities and provide the

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monitor with data and information related to each:

3 Definition infra" 17-20.

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Native student attendance rate

• Incentive programs, in collaboration with RSTED
• Transportation
• Phone calls to Native parents, with School Reach as an opt out option
• Use of media or public service announcements such as School Reach,
newspaper, and radio
• Mailings home to parents/guardians
Outcome measure: During the next two school years - 2013-2014 and 2014­ 2015 - the combined attendance rate shaJl be at least 92% for middle school and high school Native students, as measured by the state, and if it falls below that figure, the BMC shall meet annually to review and determine whether further activities are necessary to improve it. If the rate is not improved during those two years, the District must work in good faith for two more years to reach the 92% Native student attendance rate.
Actions: The District shall implement the following activities and provide the monitor with data and information related to each:
• EWS and its interventions, which include individual intervention plans,
Friday School, teacher-to-student tutoring, and Teacher Assistance Teams
• Refrain from referring students and/or their parent/guardian to the state' s
attorney before first conducting an intervention through RSTED
• Collaboration with RSTED on home visits
• Conflict resolution, to include either the Native American Advocate
and/or parent/guardian
• Mediation, to include either the Native American Advocate and/or
parent/guardian
• Breakfast program
• Annual anti-bullying training
• Attendance coordinator/office to make phone calls to the homes of absent
students daily
• Bus transportation for Native students from the Ideal and Winner housing
communities
• Attendance awards and incentives
• Middle school boys' and girls' groups

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Outcome: During the next two school years- 2013-2014 and 2014-20]5 the total number of Native high school students who drop out because of racial tension or unsatisfactory school climate shall not exceed four (4), and if it exceeds that figure, the BMC shall meet annually to review and determine whether further activities are necessary to improve the rate. Ifthe rate is not improved during those two years, the District must work in good faith for two more years to achieve the Native student dropout rates listed above.

Actions: The District shall implement the following activities and provide the monitor with data and infonnation related to each:
• Native American Advocate to conduct interviews to gather infonnation related to drops and transfers, with a revision to the document used for
this purpose

• Annual bullying training

Native student dropout rate

• Contlict resolution, to include either the Native American Advocate and/or parent/guardian
• Mediation, to include either Native American Advocate and/or parent/guardian

• EWS and its interventions, which include individual intervention plans, Friday School, teacher-to-student tutoring, and Teacher Assistance Teams

• Annual cultural sensitivity training for a1l staff, with assistance from RSTED personnel

• Individual counseling

• Middle school boys' and girls' groups

• Alternative school

• Bus transportation for Native students from the Ideal and Winner housing communities

District complaint process
Family Educational Rights and

• Attendance coordinator/office to make phone calls to the homes of absent
students daily
By the end of the 2013-2014 school year, the District, in consultation with the Native American Advocate, shall review the current process for making complaints - about teachers and school leaders, policies, and classroom practices
and provide a report to the monitor on its discoveries and possible improvements to the complaint process.
By the end of the 2013-2014 school year, the school shall have a FERPA-related policy in place; shall provide staff training on it, as part of the beginning-of­ school in-service; shall explain to students the policy; and shall address any

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Privacy Act ("FERPA,,)4 enforcement
Native teacher recruitment
School-sponsored events

individual issues with staffthat are related to FERPA, as necessary. and take appropriate action, as necessary.
During the 2013-2014 school year, SAC shall invite RSTED personnel to discuss Native American teacher recruitment and retention and the District develop a report for the monitor that identifies best practices to implement at the District to recruit, hire, and retain Native teachers. Those best practices shall be implemented by the District in the 2014-2015 school year. At least once annually, the District shall undertake Lakota awareness activities, consistent with the District's Lakota Awareness Policy 8.21, and document each event's description, along with the dates on which each took place.

Annual meeting of For each year this Amended Consent Decree is in place, the BMC shall hold an

BMC

annual meeting and record agendas and notes, and the names of those present.

Annual presentation to the RSTED Education Committee

For each year the Consent Decree is in place, the District's School Board President shaH be present at the District Superintendent'S report to the RSTED Education Committee. The committee must approve the annual report.

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Lakota Studies

Offered every semester for each year the Consent Decree is in place

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class

Number and race or ethnicity of enrolled students

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STUDENT AFFIDAVITS

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I. Defendants shall not require any student to make any statement, whether in the form of a

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written affidavit or otherwise, that may be used against him or her in ajuvenile court

proceeding or criminal proceeding.rn

DISCIPLINARY INTERVIEWS AND POLICE REFERRALS

2. If a child commits an offense for which a school official may refer him to law 
 enforcement, that school official must: (a) immediately notifY an adult family member or 
 guardian of the accused student; (b) promptly cease any further interview of the student 
 until the adult family member or guardian arrives; and (c) inform the student that 
 anything he or she says can be used against him or her in a criminal court and that the 
 student has no obJigation to speak. 
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 DISCIPLINARY RECORDKEEPING rn
3. For each discipJinary incident, the Principals or their designees shall record, in writing, 
 the name, race, gender, and grade of the student; the date, time, and location of the 
 incident; a description of the incident to the extent possible consistent; the discipline 
 category within which the misconduct falls; the punishment imposed; and the staff 
 member who made the initial disciplinary referral. 


420 U.S.C. § I232g.

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4. If the incident involved a Native American student and the Native American student was referred by a school official to law enforcement, the Principals or their designees also shall record whether the child's due process rights were protected and if so, how.
5. Defendants shall send a copy of each incident report to the family or guardian of each 
 student involved in the incident within five (5) days of the incident, with any other 
 students' names redacted. Defendants shall submit copies ofal] incident reports to the 
 Monitor and Plaintiffs' Counsel on a monthly basis for the duration of the Decree. 

EVALUATIONS FOR STUDENTS WITH THREE OR MORE 
 INCIDENTS OF MISCONDUCT 

6. With respect to every student punished three or more times during an academic year, 
 Defendants shall conduct an evaluation of the student, with the participation of the 
 student's parent or guardian, the Principal, the Native American Advocate. and Special 
 Education personnel within ten (10) days of the third disciplinary incident to determine 
 whether the student has particular needs that are causing him or her to misbehave. 
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7. The Principals or their designees shall record the results of the evaluation in writing and shall include in their reports the date of the evaluation, the names of those who attended. efforts made to contact the parents if the parents were not present, any conclusions reached, and any steps to be taken in the future. fl1
8. Defendants shall provide copies of the all such reports to the Monitor and to Plaintiffs' Counsel at the end of each month. Defendants shall not be responsible for any fees associated with Plaintiffs' Counsel's review of the monitor's reports, except as provided for in Paragraph 27. fl1
ANNUAL TRAINING OF STAFF REGARDING STUDENTS' PROCEDURAL DUE PROCESS RIGHTS AND LAW ENFORCEMENT REFERRALS
9. Defendants shall provide annual training, at the beginning of each academic year, to 
 Winner Middle School and Winner High School staff and faculty, on the constitutional 
 due process rights of students. Defendants shall request that a legal expert on the 
 constitutional due process rights of students conduct this Training. 

10. Defendants shall make attendance at this training mandatory for all school administrators authorized to make law enforcement referrals, and one representative of the Winner School Board.fl1
] I. Defendants shall submit the agenda of the training, any written materials distributed at 
 the training, and a sign-in sheet of all participants of the training to the Monitor within 
 thirty (30) days of the training.fl1 

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TEACHER TRAINING ON INDIAN EDUCATION AND EDUCATIONAL EQUITY
12. The District shall train all teachers on culturally-sensitive pedagogy and curriculum­
 enhancement, with ongoing training and support. The District shaH collaborate with 
 RSTED and the South Dakota Department of Education in order to secure training for 
 teachers and staff in these areas. The District shall also secure additional training for 
 building leaders on culturally-sensitive and minority issues related to school 
 administration from a recognized expert in this field. I1J 
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 THE NATIVE AMERICAN ADVOCATE
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13. The District shall retain a Native American Advocate who meets the legal qualifications for employment by the District. The Native American Advocate shall be a full-time employee of the District and shall be provided with an office at either the Middle School or the High School and shall work to implement the position's job description to act as a resource for the District and liaison and voice for Native American students and parents with the District.
14. The Native American Advocate, if present at school that day, shall be involved in every interview for disciplinary purposes ofa Native American student by the Principal of the Middle or the High School (or his or her designee) in the Principal's Office.
15. The Native American Advocate shall prepare a written report for each Native American disciplinary incident. The written report for each disciplinary incident shall include the name, race, gender, and grade of the student~ the date, time, and location ofthe incident; a description of the incident to the extent possible, and any other information the Native American Advocate wishes to report. If the Native American student was referred by a school administrator to law enforcement, the Native American shall record whether proper Due Process steps were followed.
16. The Native American Advocate shall encourage and assist any adult family member or 
 guardian who responds to a call from a Principal concerning the referral of a student to 
 law enforcement to record whether, in the adult family member's or guardian'S view, 
 proper Due Process steps were followed. 

SUPERINTENDENT'S ADVISORY COMMITTEE
17. The District shall maintain a Superintendent's Advisory Committee ("SAC"), which shall consist of 14-16 members, one of whom shall be the Native American Advocate, a portion shall be Native Americans representing Native American students in the District, RSTED personnel and Winner School District personnel, and at least of all SAC members are Native American.
18. The SAC shall meet at regular intervals four times during each academic year to advise, discuss, and recommend to the Superintendent matters of importance, including matters involving this Consent Decree, regarding the Winner School District and the Native
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American students/communities.

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19. The SAC shall send written minutes of all meetings to the Monitor and Plaintiffs'

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Counsel. The minutes should reflect the date of the meeting, the name of the SAC

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members who attended the meeting, all matters discussed and include all documentation

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that was handed out at the meeting.

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20. Defendants shall not be responsible for any attorneys' fees associated with Plaintiffs'

Counsel's review of these SAC reports, except as provided for in Paragraph 27. LOCAL INDIAN EDUCATION COMMITTEE ("JOM BOARD")

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21. The District shall not administer the application and/or grant funding for the Johnson

O'Malley Act; rather, it shall continue its practice of allowing RSTED and local Indian Education Committee personnel to govern those programs. Defendants shall comply with

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all federal laws, rules, and regulations regarding the Local Indian Education Committee

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under the Johnson O'Malley Act. The Local Indian Education Committee shall develop 
 its own charter and by-laws as it is entitled to pursuant to federal law. Defendants shaH

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refrain from establishing the Local Indian Education Committee's meeting agendas,

budgets, and membership, and the District's staff shall not run meetings of the Local

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Indian Education Committee. rn

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THE ROSEBUD SIOUX TRIBAL EDUCATION DEPARTMENT

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22. The Winner School Board shall invite to its monthly board meeting RSTED personnel so

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they may make presentations, if RSTED so elects. If RSTED elects to make an 


appearance, it shall follow regular Board procedures, including providing a short 
 summary of the intended presentation in advance.I?]

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23. The President of the Winner School Board and/or the Superintendent shall make a

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presentation to the Rosebud Sioux Tribal Education Committee each academic year.l1I

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24. The District shall continue to work in collaboration with RSTED representatives to help

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implement the goals and actions in this Amended Consent Decree.l1I ATTORNEYS' FEES AND COSTS

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25. In the event that Plaintiffs successfully hold the District in contempt of court for failure to work toward this Amended Consent Decree's outcome measures in "good faith", as that phrase has been defined above, Plaintiffs shall be entitled to reasonable attorneys' fees

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and costs incurred in connection with that motion.l1I

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26. After four years from the beginning of the 2013-2014 school year, any obligation the District still has under this Amended Consent Decree shall terminate without further

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negotiation or court intervention unless the Plaintiffs have proved that the District has

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failed to act "in good faith" to implement the actions contained in this Agreement.l1I

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27. Plaintiffs reserve the right to petition for attorneys' fees and costs associated with the defense of a motion to terminate the Consent Decree, if that motion is unsuccessful. Defendants reserve the right to challenge such a petition. I'lJ DISCLOSURES OF EDUCATION RECORDS
28. This Amended Consent Decree constitutes a court order authorizing Defendants to disclose information protected by FERPA, 20 V.S.c. § 1232g(b)(2)(B), for the purpose of effectuating this Consent Decree to (a) the Monitor; (b) RSTED; (c) any other Expert retained pursuant to this Consent Decree; (d) Plaintiffs' counsel; and (e) SAC members. iii
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29. Each of the entities and/or individuals receiving information protected by FERPA pursuant to Paragraph 28 shall enter into a confidentiality agreement with Defendants prior to receiving such records, consistent with 20 U.S.C. § 1232g(b)(4)(B) ifthey have not already done so. I'll MISCELLANEOUS PROVISIONS
30. The Court shall continue to retain jurisdiction over the Parties and this Amended Consent Decree, and if any motion regarding non-compliance or discharge is brought, the Court shall defer to the expertise of the Monitor, unless the Court is convinced that the outcome measure or activity at issue is unrealistic, unreasonable, likely to be ineffective, or arbitrary and capricious. In making this determination, the Court shall take into account the overall goals ofthe Original Consent Decree, which are to ensure that Native American students are treated equally with all other students, and with appropriate cultural sensitivity, consistent with the educational and pedagogical needs of the District. III
3]. Failure by either party to enforce any provision of this Amended Consent Decree shall not be construed as a waiver of the party's right to enforce other provisions of this Amended Consent Decree.1'lJ
32. All undersigned counsel of record for the Parties hereby represents their authority to enter into and execute this Amended Consent Decree on behalf oftheir respective clients.
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SIGNED on the date indicated b..-e­low:

OWIE . CIVlL LIBERTIES UNION F DATION 125 Broad Street, 18th Floor New York, NY 10004
Date: AcJ1!J.2J0+14­
lsI Stephen L. Pevar
STEPHEN PEVAR AMERICAN CIVIL LIBERTIES UNION 32 Grand Street Hartford, CT 06106
Date: [Oct 29]. 2014
COUNSEL FOR PLAINTIFF CLASS

FER UCO ERSON, PALMER, NELSON & ASHMORE, LLP 506 6th Street P.O. Box 8045 Rapid City, South Dakota 57709-8045
Date: October 29,2014 COUNSEL FOR DEFENDANTS-

Pursuant to stipulation, and for good cause. shown, IT IS SO ORDERED.

Dated this ~-'-of#~..e.wkn_,,2014.

~~
Hon. Charles B. Kommann United States District Judge

Page 15 oflS

 </s> Case 3:06-cv-03007-CBK Document 83 Filed 06/06/17 Page 1 of 2 PageID #: 690

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION

PILED
JUN 06 2017
~~

W.I.H. and J.I.H, minors by and through YVETTE IRON HEART, their mother, and on behalf of all similarly situated students,
Plaintiffs,
vs.
WINNER SCHOOL DISTRICT 59-2, BRUCE CARRIER, in his official capacity as Superintendent of the Winner School District, BRIAN NAASZ, Individually and in his official capacity as Principal of Winner Middle School, and GERALD WITTE, in his official capacity as Principal of Winner High School,
Defendants.

3 :06-CV-03007-CBK ORDER

Plaintiff class members instituted this action contending that defendants discriminated against Native American students, maintained a racially hostile educational environment, and engaged in racially discriminatory policies, customs, and practices. Plaintiffs sought declaratory and injunctive relief. The parties entered into mediation and reached an agreement to enter into a consent decree requiring the Winner School District to undertake various actions to improve the educational experience of Native American students in the District. The original consent decree was entered on December 10, 2007, and was thereafter amended on November 4, 2014, based upon the parties continued collaboration aimed at meeting the decree's goals.
The parties have stipulated and agreed that the defendants have successfully completed the requirements set forth in the amended consent decree and have jointly requested that the Court terminate the consent decree.

I
f
l

Case 3:06-cv-03007-CBK Document 83 Filed 06/06/17 Page 2 of 2 PageID #: 691
Now, therefore, IT IS ORDERED that the joint motion, Doc. 82, to terminate the consent decree is granted. IT IS FURTHER ORDERED that the amended consent decree, Doc. 81, is hereby terminated. DATED this 6th day of June, 20 I 7.
BY THE COURT:
~6~~
CHARLES B. KORNMANN United States District Judge


[CONTENT] March 27, 2006 | Winner School District | three | the U.S. District Court ||| Native American | Native American ||| School District | Native American ||| Native American ||| Native American ||| ACLU | Rosebud Sioux | General's Office | the Fifth Amendment | the Due Process Clause and Equal Protection Clauses | Title VI | the Civil Rights Act ||| 42 | 1983 ||| Native American | Winner School District's ||| April 28, 2006 ||| June ||| October 20, 2006 | Charles B. Kornmann ||| Settlement Agreement | May 30, 2007 ||| Kornmann | December 10, 2007 ||| the Consent Decree ||| Decree | School District | three | a year | Native American | American | Indian | Native American | Native American ||| the Consent Decree |||  ||| Decree | four years ||| 100,000 ||| first | second | June | September 2008 ||| Native American ||| January 8, 2014 ||| the Amended Decree | April 28, 2014 ||| two years ||| two years ||| May 31, 2017 | the Consent Decree ||| Kornmann | June 6, 2017 [SUMMARY] Plaintiffs, minor students, filed this class action lawsuit on March 27, 2006, against Winner School District and three of its administrators in the U.S. District Court for the District of South Dakota. Plaintiffs, who were Native American, alleged that employees of the School District engaged in a pattern or practice of intentional racial discrimination with the purpose of pushing Native American students out of the school system. Specifically, plaintiffs alleged that the School District disciplinary practices targeted Native American students by disciplining them more often and more harshly than other students, referring them to law enforcement for minor infractions, and coercing criminal confessions out of them. They also alleged that teachers and administrators tolerated and fostered a racially hostile school environment by allowing racial name-calling and bullying to occur and treating Native American parents with disrespect. As a result, Native American students were less likely to complete high school and felt demoralized at school. 

Represented by the ACLU and the Rosebud Sioux Attorney General's Office, plaintiffs brought claims under the Fifth Amendment, the Due Process Clause and Equal Protection Clauses of the Fourteenth Amendment, and Title VI of the Civil Rights Act. They sought declaratory and injunctive relief pursuant to 42 U.S.C. §1983. Plaintiffs also asked the court to certify as a class all Native American students who were or would be enrolled in Winner School District's middle and high schools.

On April 28, 2006, plaintiffs submitted a motion for class certification. The parties began the discovery process in June. On October 20, 2006, Judge Charles B. Kornmann issued an order granting class certification.

After a series of mediation sessions, the parties settled and filed a proposed Settlement Agreement on May 30, 2007. A court-enforceable Consent Decree was entered by Judge Kornmann on December 10, 2007. The terms of the Consent Decree prohibited defendants from requiring any student to make a written statement ("affidavit") that could be used against him or her in legal proceedings. The Decree also required defendants to immediately notify parents after deciding to refer a student to law enforcement and to notify students of their legal right to remain silent in such a case; train School District employees on proper disciplinary procedures and the constitutional rights of students; obtain an independent expert to assist with the development of disciplinary matrices; keep accurate records of disciplinary incidents; conduct evaluations of students subjected to discipline three or more times over the course of a year; hire a Native American ombudsperson; train teachers on American Indian education and educational equity; increase its number of Native American employees; and take several other measures designed to eliminate racial discimination and create an inclusive environment for Native American students and families. Defendants were also ordered to find and appoint a Monitor to oversee and report on the implementation of the Consent Decree.

The court maintained jurisdiction for enforcement purposes. The Decree was to stay in effect until defendants had achieved and maintained compliance for four years. Finally, it awarded plaintiffs $100,000 in attorneys' fees and costs. 

The first and second progress reports, filed in June and September 2008, indicated that defendants had made progress in all areas. Among other things, they had hired more Native American staff members, developed anti-bullying programming, and developed a disciplinary matrix. 

On January 8, 2014, the parties proposed an Amended Consent Decree. The court granted the Amended Decree on April 28, 2014. The new agreement was very similar to the original, but required that, if the School District reached all outcome measures within the following two years, it would be released from the Agreement. If some measures were not reached within that time, the District would be formally released from having to reach those outcomes but would be required to continue a good-faith effort to do so for the following two years. 

On May 31, 2017, the parties jointly filed a motion to terminate the Consent Decree after finding that defendants had met all of their obligations. Judge Kornmann formally terminated the Decree on June 6, 2017. 
