Redding v. Kenmare Public School et al

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UNITED STATES DISTRICT COURT
DISTRICT OF NORTH DAKOTA
Allen Redding on behalf of minor son D.R.,
Plaintiff,
-vs-
Kenmare Public School, through its Board of
Education; Alex Hennix, in her official and
individual capacity; Doe Defendants 1-20, in their
individual and official capacity,
Defendants.
Civil No. 1:23-cv-25
ORDER APPROVING STIPULATION
FOR APPROVAL OF NOTICE OF
POTENTIAL DISCLOSURE OF
STUDENT RECORDS
[¶1] 	The above-entitled matter came before the Court pursuant to the Stipulation for Approval
of Notice of Potential Disclosure of Student Records (the “Student Records Stipulation”) by
Defendants Kenmare Public School, through its Board of Education (the “School District”); Alex
Hennix, (“Hennix”), collectively the “School Defendants” and Plaintiff Allen Redding on behalf
of minor son D.R. The Court having reviewed the Student Records Stipulation and, for good
cause having been shown, hereby makes and enters the following ORDER:
BACKGROUND
[¶2] 	Plaintiff filed his complaint on April 10, 2023. ECF 1. The complaint was later amended
per this Court’s order, and the School District has filed an answer to the amended complaint. See
ECF 32, 33, and 38.
[¶3] 	In his amended complaint, the Plaintiff asserted the following claims: (1) Title IX
Violation; (2) First Amendment Violation; (3) Fourteenth Amendment Equal Protection Violation;
(4) Breach of Contract; and (5) Negligent Infliction of Emotional Distress. 	ECF 33. This Court
dismissed the First Amendment Violation and Fourteenth Amendment Violation alleged against
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Defendant Hennix in her official capacity. ECF 41, p. 4, ¶¶8-9. This Court also dismissed the
Breach of Contract and Negligent Infliction of Emotional Distress claims, in total. ECF 41, p. 6-
8, ¶¶15-23.
[¶4] The School District has denied and continues to deny the allegations in Plaintiff’s amended
complaint and has also asserted several affirmative defenses to Plaintiff’s claims. ECF 38.
[¶5] Plaintiff served written discovery upon the School Defendants, and the School Defendants
conducted an extensive search to locate documents and records responsive to the written discovery
under N.D. R. Civ. P. 26. In addition, the School Defendants conducted a search to locate
documents and records relative to their obligation for initial disclosures under Fed. R. Civ. P.
26(a)(1). A number of documents and records have been identified through these searches.
[¶6] As a result of the School Defendant’s search for records and documents, the School
Defendants believe the documents, records and information responsive to Plaintiff’s written
discovery and/or required for disclosure as part of their initial disclosure obligations under Fed. R.
Civ. P. 26(a)(1) may, and likely do, include confidential records of non-party students, including
“educational records” (as defined in 20 U.S.C. § 1232g(a)(4) and/or 34 C.F.R. § 99.3) or records
that contain “personal identifiable information” (as defined in 45 C.F.R. § 160.103 and 45 C.F.R.
§ 164.501), that are subject to certain protections from disclosure. The non-party student
documents, records and information shall be referred to herein as the “Non-Party Student
Records.”
[¶7] To permit the School Defendants to disclose the Non-Party Student Records to Plaintiff,
notice of the potential disclosure and opportunity to object must be provided to either the non-
party students’ natural parent, guardian or individual acting as a parent in the absence of a parent
or guardian, or to the non-party students who have reached the age of majority. See 20 U.S.C. §
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1232g(b)(2); 34 C.F.R. § 99.31(a)(9); 45 C.F.R. § 164.512(e)(1); N.D.C.C. § 44-04-18.11;
Krakauer v. State by & through Christian, 381 P.3d 524, 532, n.6 (Mont. 2016); DeFeo v. McAboy,
260 F. Supp. 2d 790, 795 (E.D. Mo. 2003).
[¶8] Based upon the searches of the Non-Party Student Records for names of students attending
Kenmare Public School during the 2021-2022 school year, the School Defendants have determined
there are twenty-nine (29) non-party students identified within the Non-Party Student Records.
[¶9] On December 17, 2024, this Court entered a Protection Order for Confidential Information
(the “Protective Order”) which contemplated a method to seek Court approval for the disclosure
of the Non-Party Student Records to the Plaintiff by means of motions to be served upon the
respective non-party student’s natural parent, guardian or individual acting as a parent in the
absence of a parent or guardian, or the non-party student (who have reached the age of majority).
ECF 43, ¶ 3(b); see also 20 U.S.C. § 1232g(b)(2); 34 C.F.R. § 99.31(a)(9); 45 C.F.R. §
164.512(e)(1); N.D.C.C. § 44-04-18.11; Krakauer, 381 P.3d at 532, n.6; DeFeo, 260 F. Supp. 2d at
795.
[¶10] Due to the burden upon the Court and the School District in filing and serving
approximately 29 individual motions, the School Defendants and Plaintiff have conferred and
agreed a more efficient procedure to provide the required notice and opportunity to object is by
the approval and issuance of the NOTICE OF POTENTIAL DISCLOSURE OF STUDENT
RECORDS (the “Notice”), attached as Exhibit A to the parties’ stipulation.
[¶11] The Notice provides the relevant information necessary concerning the potential disclosure
of Non-Party Student Records and the procedure to file an objection to such disclosure.
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(b) 	To the Court, filed under seal and for an in camera review by the Court.
(c) 	During the process of resolving the objection, the Non-Party Student Records shall
not be provided to Plaintiff.
ORDER
[¶12] BASED ON THE FOREGOING, and the requirements of 20 U.S.C. § 1232g(b)(2), 34
C.F.R. § 99.31(a)(9), 45 C.F.R. § 164.512(e)(1), and N.D.C.C. § 44-04-18.11, the following is
Ordered and Directed:
[¶13] The parties’ Student Records Stipulation and the Notice, are approved in total, and this
Court shall issue the Notice.
[¶14] For each non-party student whose name has been identified by the School Defendants as
being within the Non-Party Student Records, the School Defendants are directed to mail the
Notice, by regular U.S. mail, to said non-party student’s natural parent, guardian or individual
acting as a parent in the absence of a parent or guardian, or to the non-party student (for those who
have reached the age of majority), at said party’s last address contained within records of the
School Defendants.
[¶15] In the event a timely objection is made pursuant to the terms of the Notice, the School
Defendants are directed to provide the Non-Party Student Records of the respective non-party
student for whom an objection has been received in the following manner:
(a) To the objecting non-party student’s natural parent, guardian or individual acting as
a parent in the absence of a parent or guardian, or to the objecting non-party student (who have
reached the age of majority), as the case may be, provided however, if another student’s name
appears within such Non-Party Student Record, the name of the other student shall be redacted.
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____________________________________
Clare R. Hochhalter, Magistrate Judge
United States District Court
[¶16] Any disclosure of Non-Party Student Records by the School Defendants to the Plaintiff,
whether by resolution of a timely objection or by the failure to submit a timely objection, shall be
by further Court order, and nothing in this Order shall be construed as a judicial determination
regarding the disclosure of any Non-Party Student Records to Plaintiff.
[¶17] Any disclosure of the Non-Student Records to Plaintiff shall be subject to the Protective
Order and shall not affect the admissibility of any Non-Student Records and does not waive any
objection by the School Defendants to the production and/or admissibility of the Non-Student
Records.
[¶18] DATED this 17th day of January, 2025.
/s/ Clare R. Hochhalter
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