News Photo by Reagan Voetberg The sign outside Besser Elementary is seen on Thursday.

ALPENA — The Michigan Court of Appeals has ruled in favor of the defendant, Alpena Public Schools, in a lawsuit claiming that the district created a hostile educational environment for student “Jane Doe,” according to court documents.

The case arises from several incidents between minors Doe and “John Roe.” During the 2016-2017 school year, Doe and Roe were fourth-grade students assigned to the same classroom at Besser Elementary School in the Alpena School District.

Courts use “Jane Doe” and “John Roe” to protect the identities of the students.

Roe has a profound speech and language disorder that severely affects his ability to communicate with others. As a result, Roe was placed on an individualized education plan and received special education services.

These services included a full-time instructional aide who was tasked with communication assistance and “behavioral redirection.” In addition to his speech difficulties, Roe was also suspected of having developmental and intellectual delays. At the time of the incidents, those delays had not been formally diagnosed.

In two separate incidents, Doe told school officials that Roe inappropriately touched and made sexual motions toward her.

The first incident was reported to school administrators who imposed a three-day out-of-school suspension against Roe. The police investigated, but the prosecutor decided not to file a delinquency petition.

The second incident was also reported to school officials. Roe received an eight-day out-of-school suspension. When he returned to school, Roe was assigned to a different fourth-grade classroom and was placed in a separate lunch period from Doe. School administrators sent Roe’s parents a letter indicating he was to have “no contact” with Doe.

That incident was also investigated by the police. The prosecutor filed a delinquency petition against Roe, but charges were later dropped because the trial court found Roe to be incompetent.

In 2018, Doe and Roe advanced to sixth grade at Thunder Bay Junior High. Doe reported that they were assigned to the same bus one day and that she had seen Roe in the hallway in multiple instances, despite a letter being sent by the plaintiff’s counsel to school administrators that Doe was to have no contact with Roe.

The lawsuit against APS was dismissed in 2021 after an Alpena judge ruled that the district could not be found responsible for Roe’s actions under the Elliott-Larsen Civil Rights Act.

The case was then heard by the Michigan Court of Appeals in December 2022. The appellate court disagreed with the lower court. In their role as surrogate parent during a school day, schools do have some control over student behavior and the environment created by those students, the appellate court said.

However, the Court of Appeals did not overturn the lower court’s decision. The appellate court claimed that the person filing the lawsuit did not provide enough proof that APS’s response to the alleged harassment was inadequate.

The case came before the Michigan Supreme Court which remanded the case back to the Court of Appeals.

On April 14, the Court of Appeals stated that the plaintiff did not provide sufficient evidence that APS failed to take “prompt and remedial action” in response to Roe’s behavior, and that the trial court properly granted summary disposition in this case.

Summary disposition is when a judgment is made by a court without a full trial, when there is no genuine dispute of the facts and the law dictates the outcome.

“Plaintiff’s assertions that Roe’s instructional aide was ‘unqualified’ and that she had ‘failed to do her duty’ are not ‘specific’ facts which demonstrate that defendants’ remedial actions to Roe’s behavior were unreasonable,” the appellate court said. “While plaintiff’s response to the motion for summary disposition included a number of exhibits, plaintiff failed to pinpoint anything within the exhibits to support her assertions. Moreover, plaintiff failed to explain why defendants’ other actions–suspending Roe from school and removing him from the fourth-grade class–were not appropriate remedial actions.

“Plaintiff failed to satisfy her burden as the nonmoving party and thus failed to show a genuine issue of material fact as to whether defendants took prompt and appropriate remedial action,” the appellate court said. “Thus, the trial court properly granted summary disposition.”

Reagan Voetberg can be reached at 989-358-5683 or rvoetberg@TheAlpenaNews.com.