Fort Peck Reservation Title VI Complaint, FINAL names redacted

EXECUTIVE SUMMARY

The Wolf Point School District discriminates against Native students and deprives them of basic

rights to which they are entitled in school. The Assiniboine and Sioux Tribes, whose reservation

encompasses the Wolf Point school district, asks that the U.S. Department of Justice and U.S.

Department of Education intervene. The unequal treatment of Native students is detrimental to

their development and education and violates federal law.

White residents on the Fort Peck Indian Reservation, which is majority-Native, control local

politics, business, and schools. Gerrymandering and nepotism have perpetuated racial inequality

created by federal policies, including preferential land grants for white homesteaders and

compulsory boarding school programs for Native students. Schools on the Reservation bear the

legacy of the Fort Peck Reservation Boarding School, which violently imposed Western culture,

values, and education on Native families through the early 1900s.

Hostility towards Native students and culture persists. Native students in Wolf Point report the

use of racial slurs and harmful stereotypes by white administrators, faculty, and staff. Native

students are disproportionately disciplined and excluded from school, often without due process.

At Wolf Point High School, non-white students, most of whom are Native, are more than twice

as likely to receive in- and out-of-school suspensions than white students. These suspensions

also violate federal and local standards for discipline. Native students are routinely denied

academic and extracurricular opportunities available to white students. Students with academic

and behavioral challenges, most of whom are Native, are warehoused in the Opportunity

Learning Center, which is understaffed and underfunded.

These practices have dramatic effect on the academic performance of Native students. Ninety-

four percent of Native students at Wolf Point High School are below proficiency in reading,

compared to forty-nine percent of white students. The school environment contributes to Native

truancy and lack of interest in school. Eighty percent of Native students are chronically absent

from Wolf Point High School, compared to thirty-three percent of white students. The

harassment and discrimination are also damaging to Native students’ emotional well-being.

Native students report feeling discouraged, and even suicidal, because of hostility they face in

school. When Native residents complain about unequal treatment, district leadership retaliates,

including by taking disciplinary action against students and banning parents from school

property.

There is urgent need for the U.S. Department of Justice and U.S. Department of Education to

investigate Wolf Point school district’s discriminatory treatment of Native students and due

process violations, and assist in bringing the district into compliance with federal law. The

Tribes wish to work with the Departments and the district to provide Native students with an

equal education.

Photo credit: www.thomasleetruewest.com

TO: The United States Department of Justice

The United States Department of Education

RE: Wolf Point School District Violations of Title VI of the Civil

Rights Act of 1964, Title II of the Americans with Disabilities Act,

and Section 504 of the Rehabilitation Act of 1973

FROM: The Tribal Executive Board of the Fort Peck Indian Reservation on behalf

of the children of the Assiniboine and Sioux Nations

SUBMITTED BY:

Melina A. Healey, Esq.

Equal Justice Works Fellow

Sponsored by the Albert and Anne Mansfield Foundation

c/o New York University School of Law

245 Sullivan Street

New York, NY 10012

Tel: (917) 921-0858

Email: [email protected]

Alex Rate, Esq.

S.K. Rossi, Esq.

ACLU of Montana

P.O. Box 9138

Missoula, MT 59807

Tel: (406) 443-8590

Email: [email protected] | [email protected]

Racial Justice Clinic

Washington Square Legal Services

New York University School of Law

245 Sullivan Street

New York, NY 10012

Tel: (212) 998-6462

Email: [email protected]

BY: Claudia Angelos, Esq.

Supervising Attorney

Cassarah Chu

Lucy Kissel

Michelle Musielewicz

Raquel Villagra

Victoria Wenger

Law Students

Sarah Patarino, J.D.,

Loyola University School of Law Class of 2017

TABLE OF CONTENTS

I. INTRODUCTION ................................................................................................................ 1

II. BACKGROUND ................................................................................................................... 2

A. The Reservation is home not only to the Tribes but also to non-Native people who

occupy positions of power and economic superiority. ............................................................... 2

B. Non-Native political and economic control originated in the federal government’s

opening of the Reservation to white homesteaders in the early twentieth century. ............... 4

C. Racism by non-Natives is pernicious in this community, but does not present in a

typical discrimination framework. .............................................................................................. 5

D. The discriminatory education system on the Reservation is rooted in racist federal

policies. ........................................................................................................................................... 6

1. The federal government established assimilationist boarding schools on the Reservation,

designed to segregate Native students and strip them of their cultural identities. ...................... 6

2. The effects of the federal government’s boarding school program persist. ........................ 8

3. Reservation public schools are segregated by race. ............................................................ 9

4. Racial gerrymandering of local School Board voting districts deprives Tribal members of

a voice in the policies and practices affecting Tribal children’s education. ............................... 9

5. The domination of non-Native faculty, administration, and leadership exacerbates the

alienation of Native students in District schools. ...................................................................... 10

III. UNLAWFUL DISCRIMINATION IN THE DISTRICT ................................................ 12

A. The District concentrates power in the white community to the detriment of Native

students’ education. .................................................................................................................... 12

1. Non-Native families enjoy near exclusive power over the District. ................................. 12

2. The District preferentially hires and promotes members of non-Native families while

failing to hire or promote qualified Native professionals. ........................................................ 13

3. Wolf Point schools’ predominantly white staff and administration fail to connect with

Native students. ......................................................................................................................... 14

a. Wolf Point schools fail to train their staff and administration in Native culture. ......... 14

b. Wolf Point schools fail to embrace Native programming and their Native legacy. ..... 16

c. Wolf Point schools violate educational law and offend cultural norms in their

interactions with Native students and families. .................................................................... 16

4. Wolf Point schools refuse to work with the Native community to address the epidemic of

self-harm and suicide among its vulnerable Native students. ................................................... 17

B. District staff and administration bully, harass, and push out Native students. ............ 18

1. Teachers, administrators, and fellow students in Wolf Point schools bully and harass

Native students on the basis of race. ......................................................................................... 18

2. Wolf Point schools push Native students out. .................................................................. 19

C. District staff and administration discipline Native students more frequently and

harshly than white students. ...................................................................................................... 20

1. Federal data show disproportionate discipline of Native students in Wolf Point schools. 21

2. Wolf Point schools target Native students for discipline. ................................................. 26

3. Wolf Point schools enforce disciplinary policies designed to target Native students. ..... 27

D. District staff and administration treat Native students differently in school activities.29

1. Wolf Point schools deny Native students critical academic opportunities. ...................... 29

2. Wolf Point schools deny Native students equal guidance and college counseling. .......... 31

3. Wolf Point schools’ sports programs subject Native students to bullying, harassment,

exclusion, and disproportionate discipline. ............................................................................... 32

a. Basketball holds heightened importance in the Native community and provides

opportunities for child development, excellence, and recognition. ...................................... 32

b. Coaches in the District use racist and culturally insensitive language. ........................ 34

c. Wolf Point schools’ sports programs discipline Native students more frequently and

harshly than white students. .................................................................................................. 35

d. Wolf Point schools’ sports programs favor white students. ......................................... 39

e. Wolf Point schools’ sports programs exclude and push out Native students. .............. 40

4. Wolf Point schools favor white students. ......................................................................... 40

5. Wolf Point schools retaliate against Native parents who demand equal treatment for their

children. .................................................................................................................................... 41

6. Wolf Point schools violate Native students’ due process rights in discipline. ................. 42

7. Wolf Point schools violate the rights of Native students with disabilities. ...................... 43

IV. STATEMENT OF JURISDICTION ............................................................................. 45

V. CONCLUSION ................................................................................................................... 46

I. INTRODUCTION

The Tribal Executive Board of the Fort Peck Indian Reservation (the “Reservation”) brings this

complaint on behalf of the children of the Assiniboine and Sioux Nations (the “Tribes”) who are

residents on the Reservation and who attend schools in the Wolf Point School District (the

“District”). The District, one of five on the Reservation, is controlled and run by white people.

As detailed in this complaint, our children who attend District schools have been and continue to

be subjected to unequal treatment, bullying, and harassment, and have been deprived of the

education to which they are entitled.

We bring this complaint in the hope that the Departments will investigate these ongoing

violations and will work with us and the District to bring Wolf Point schools into compliance

with the law by treating Native children as well as they do white children. The stories of unequal

treatment we provide in this complaint are well known to us and were documented in dozens of

interviews of students, parents, school staff, tribal leaders, and elders in our community. Many

other students and families have stories like these but are fearful about coming forward with

them.

Within the body of the complaint, we have redacted the names of the children and some adults

who have come forward with examples of the kinds of discrimination Native students face in

Wolf Point. We will provide the names to investigators from the Departments, but because these

individuals fear further harassment and retaliation for participating here, we do not identify them

in this document.

II. BACKGROUND

The Assiniboine and Sioux Nations have survived 150 years of genocide, military-imposed

relocation, and colonial rule. Their children were forced into an abusive boarding school

program and compelled to assimilate into Anglo-American culture. Because of this history and

the current local and national policies affecting Native people, the Tribes now experience

staggering rates of poverty, child abuse, substance abuse, suicide, and family instability. Native

children need, and are entitled to, support from their on-Reservation schools. In disregard of this

obligation, and despite receiving federal funds intended specifically to educate and nurture

Native children, the schools in the white-controlled Wolf Point District neglect and discriminate

against them.

A. The Reservation is home not only to the Tribes but also to non-Native people who

occupy positions of power and economic superiority.

The Fort Peck Reservation is located in

Montana’s remote northeastern corner,

isolated from any major economic or

population center.

The Reservation has

approximately 10,000 residents, 6700 of

whom are Native.

The remaining 3300

occupants of the Reservation are non-

Native,

largely descendants of white

homesteaders who were given preferential

land grants within the Reservation’s

borders.

The city of Wolf Point is the Reservation’s business center, the political seat for county

government,

and the largest town on the Reservation, with a population of 2600.

One third of

the Reservation’s non-Native population is concentrated in Wolf Point, which is forty-three

percent white.

The white community dominates county government and owns most local

We use this term to refer to our Tribal members and associate members, as well as students who identify as Native,

whose ancestry and culture are of the various indigenous tribes of the United States, in the District. Where we cite

to data from government sources, we use the racial classification terms employed by these entities. For example,

Montana uses the classification “Native American” and the United States government uses the term “American

Indian.”

DAVID MILLER, DENNIS SMITH, JOSEPH R. MCGESHICK, JAMES SHANLEY, & CALEB SHIELDS, THE HISTORY OF THE

FORT PECK RESERVATION ASSINIBOINE AND SIOUX TRIBES, 1800-2000 12 (2008). The Tribes have inhabited this

region since at least the early seventeenth century.

U.S. CENSUS BUREAU. 2010 CENSUS (2010).

Id.

See CITY OF WOLF POINT, Statistical Information, http://ci.wolf-point.mt.us/stats/ (last visited Nov. 23, 2016).

U.S. CENSUS BUREAU. 2010 CENSUS (2010).

According to 2010 Census data, the Reservation has 3000 non-Native white residents; Wolf Point has 1100 non-

Native white residents and a total population of 2600. See U.S. CENSUS BUREAU. 2010 CENSUS (2010). Poplar is

the second-largest town on the Reservation, home to 800 residents, the headquarters of the official governing body

of the Tribes, the Fort Peck Tribal Council, and the Bureau of Indian Affairs’ Fort Peck Indian Agency. See U.S.

businesses. The non-Tribal county and city governments have significant power on the

Reservation because Tribal land on the Reservation is broken up, or “checker-boarded,” with

state land. The Tribes and their members have no control over the state- or privately-owned

land. Just under half of the Reservation’s 2,000,000 acres belong to the Tribes or their

members.

Non-Natives control the vast majority of the Reservation’s most valuable land.

Only

the city of Poplar and the other smaller and poorer communities within the Reservation’s borders

are mostly Native.

The median household income on the Reservation is $34,300,

twenty-seven percent below the state median.

Over thirty-two

percent of the families on the Reservation with children under

eighteen live below the poverty level, compared to seventeen

percent for the state; the percentage increases significantly to

forty-nine percent for families with children under five, compared

to nineteen percent for the state.

Human services are limited.

Cattle ranching, farming, and oil are the main local economies.

Commercial businesses include a few motels, a convenience store,

gas stations, restaurants, a laundromat, an auto repair shop, a video

arcade, a fast food shop, arts and handcrafts vendors, and a

handful of other businesses.

Virtually all these commercial

enterprises are owned by whites.

CENSUS BUREAU. 2010 CENSUS (2010); see also FORT PECK TRIBES, Community,

http://www.fortpecktribes.org/community.html (last visited Jan. 26, 2017).

MONT. OFFICE OF PUB. INSTRUCTION, Montana Indians: Their History and Location (Apr. 2009),

http://www.montanatribes.org/links_&_resources/tribes/Fort_Peck.pdf.

Andrea Appleton, Blood Quantum, HIGH COUNTRY NEWS (Jan. 12, 2009), http://www.hcn.org/issues/41.1/blood-

quantum.

The Reservation’s population density is greatest in the communities that run along the southern border of the

Reservation, near the Missouri River and along U.S. Highway 2. Wolf Point and Poplar are the two largest school

districts; the others include Brockton, Frazer, Oswego, and Fort Kipp. See MONTANA DEP’T OF LAB. & INDUSTRY,

Fort Peck Reservation Profile, (Rev. Oct. 2013), https://lmi.mt.gov/Portals/135/Publications/LMI-

Pubs/LocalAreaProfiles/Reservation%20Profiles/RF16-FortPeck.pdf.

U.S. CENSUS BUREAU, 2010-2014 American Community Survey 5-Year Estimates. The state median household

income was $46,800 during this period.

Id.

The Census and Economic Information Center of the Montana Department of Commerce used United States

Census information from 2000 to analyze amenities available to Montana Reservation residents. Wolf Point

residents had access to one grocery store when the community could support two; three doctors and clinics when the

community could support ten; and two financial institutions when the community could support four, implying

Reservation-wide underservice in these private sectors.

U.S. CENSUS BUREAU, 2010-2014 American Community Survey 5-Year Estimates; see also MONTANA

GOVERNOR’S OFFICE OF INDIAN AFFAIRS, Fort Peck Assiniboine & Sioux Tribes,

http://tribalnations.mt.gov/fortpeck. (last visited Jan. 26, 2017).

U.S. DEP’T OF TRANSP., FED. HIGHWAY ADMIN., OFFICE OF PLAN., ENV’T, & REALTY, Technical and Analytical

Paper: Roosevelt County / Fort Peck Indian Reservation Corridor, Montana (Nov. 2003),

http://www.fhwa.dot.gov/planning/economic_development/technical_and_analytical/mt10.cfm; See also WOLF

POINT CHAMBER OF COM. AND AGRIC., Business Directory, http://www.wolfpointchamber.com/business-

directory.html. (last visited Jan. 26, 2017).

B. Non-Native political and economic control originated in the federal government’s

opening of the Reservation to white homesteaders in the early twentieth century.

In the early twentieth century, the federal government used land allotments to assimilate Native

people, intending to transform them from nomadic hunters into sedentary farmers.

Under the

Fort Peck Allotment Act, Tribal members each received 320-acre parcels of grazing land.

Approximately 600,000 acres were provided to individual Tribal members or reserved for Tribal

use. This attempt at economic assimilation was largely unsuccessful, however, and relatively

few Native Americans developed profitable farms.

As land passed through generations, it

fractioned among multiple heirs.

In 1913, the remaining 1,400,000 of the Reservation’s

2,000,000 acres were made available for white settlement.

that point, much of the Reservation’s more valuable cropland was

awarded to white homesteaders.

The homesteaders introduced market capitalism to the region,

devastating the Native economy, which was already destabilized

by decades of Anglo disease, warfare, and extermination of vital

resources such as bison. White settlers flooded the region and

began farming. The Great Northern Railway created new trade

opportunities for the white area residents, and commercial

business grew to cater to them. Meanwhile, with the

disappearance of the bison and thus the Native fur trade, Tribal

members became dependent on the subsistence provided by the

United States government through the Bureau of Indian Affairs’

Fort Peck Agency.

SCOTT DANIEL WARREN, LANDSCAPE AND PLACE-IDENTITY IN A GREAT PLAINS RESERVATION COMMUNITY: A

HISTORICAL GEOGRAPHY OF POPLAR, MONTANA, 56 (2008); see also PHILIP J. DELORIA & NEAL SALISBURY, A

COMPANION TO AMERICAN INDIAN HISTORY 528 (2008).

35 Stat. 558 (1908).

WARREN, supra note 16, at 56; see also DELORIA & SALISBURY, supra note 16, at 528; See also Appleton, supra

note 9 (“By 1881, early in the reservation's history, the buffalo of the region were gone. Federal rations weren't

enough to make up for the loss. In desperation, the starving tribe took up farming, but northeastern Montana's dry

climate and short growing season led to crop failures and more hunger.”).

U.S. DEP’T OF INTERIOR, Land Buy-Back Program for Tribal Nations: Frequently Asked Questions (Rev. Nov.

2015), https://www.doi.gov/sites/doi.gov/files/migrated/buybackprogram/landowners/upload/Frequently-Asked-

Questions.pdf.

FORT PECK TRIBES, Tribal History, http://www.fortpecktribes.org/tribal_history.html (last visited Jan. 26, 2017).

See MONT. OFFICE OF PUB. INSTRUCTION, supra note 8. For further details, see Appleton, supra note 9.

The Bureau of Indian Affairs (“the BIA”) is an agency of the federal government, responsible for managing the

relationship between Native tribes and the federal government. The BIA established regional agencies, such as the

Fort Peck Agency in 1871, to carry out the mission of the BIA and implement various federal policies pertaining to

Native peoples. In its early years, the Fort Peck Agency provided food rations, provisions, and other necessities to

the Tribes based on the premise that they were needed if acculturation was going to succeed. See MILLER, ET AL.

supra note 2, at 83; see also BUREAU OF INDIAN AFFAIRS, http://www.bia.gov/WhoWeAre/BIA/ (last visited Nov.

23, 2016).

As late as the 1980s, the non-Native population controlled eighty-two percent of Reservation

land.

More recently, declines in petroleum and agricultural markets prompted some non-Native

people to leave the region.

The non-Native population now no longer outnumbers the Native

population on the Reservation, but white economic and political dominance persists.

C. Racism by non-Natives is pernicious in this community, but does not present in a

typical discrimination framework.

The Reservation is a racially mixed population marked by white economic and political power

and by prejudice against Native people.

Racial discrimination is especially evident in Wolf

Point, the business center of the Reservation.

The local manifestation of racial prejudice can be difficult for outsiders to recognize because it

does not follow more familiar patterns of discrimination based on skin color or phenotype.

Instead, Native and non-Native people in the area are racially classified as much by their tribal

enrollment status, family connections, and names as by skin color. Certain names indicate

obvious Native ancestry, such as “Spotted Bird” and “Raging Bull,” but so do certain French

surnames. Names such as Azure, Gourneau, Grandbois, and Trottier have passed down

generations in the community since as early as 1906.

Today, the Chairman of the Council is

Floyd Azure, and Roxanne Gourneau is a member of the Tribal Executive Board.

Surname

alone can be used to determine Native American descent and serves as a basis for discrimination

See generally MILLER, ET AL. supra note 2. Today, through buyback agreements with the government, the Tribes

endeavor to regain their land. See INDIAN COUNTRY MEDIA NETWORK, Three More Tribes Sign Land Buy-Back

Agreements Under Cobell (July 10, 2014), http://indiancountrytodaymedianetwork.com/2014/07/10/three-more-

tribes-sign-land-buy-back-agreements-under-cobell-155757.

WARREN, supra note 16, at 113.

U.S. CENSUS BUREAU, 1990 CENSUS (1990); see also ASSINIBOINE & SIOUX RURAL WATER SUPPLY SYSTEM,

Final Engineering Report: Demographics, Table 3-1: Historic Population and Growth Rate: Fort Peck Indian

Reservation and Counties in Project Area (Jan. 2002),

http://www.fortpecktribes.org/asrwss/pdf/vol1/demographics.pdf. See, e.g. Interview by Rebecca Gerome with

Cookie Ragland, in Wolf Point, Mont. (Sept. 28, 2015).

When the Reservation was founded] it was checker-boarded so it was Native and non-Native across. What

happened was your Native population weren’t farmers, so they sold to the non-Native people and moved to

town. And the non-Native guys got really big farms, up north, they’re huge. It’s a Mennonite population,

very white, very closed, even to other whites. Half this reservation was non-Natives to start with, so that’s

how it happened, right from the very beginning. Now there’s this buy-back thing going on, where you

can’t sell land, it has to be sold back to the Tribes. The Mennonites, they’re not going to sell anyway,

they’re just going to gift it from one generation to the next. They’re just going to keep those big farms.

Some of that acreage went with the top, the surface, so the Natives didn’t maintain the minerals, so there’s

that going on to where there’s discrimination. Wolf Point is on the reservation but it’s not run by the

Tribes. It has its own city government and is the county seat.

As late as the 1950s, businesses were all owned by non-Native people and displayed signs saying “No dogs or

Indians allowed.” Interview by Rebecca Gerome with Tribal Community Member #1 in Wolf Point, Mont. (Sept.

28, 2015); See, e.g. Interview by Rebecca Gerome with Native Community Member #2 in Brockton, Mont. (Sept.

28, 2015).

See City of Wolf Point, Statistical Information, http://ci.wolf-point.mt.us/stats/ (last visited Feb. 9, 2017).

MILLER, ET AL. supra note 2, at 181.

FORT PECK TRIBES, Executive Board, http://www.fortpecktribes.org/executive_board.html (last visited Jan. 26,

2017).

that is not evident to non-community members. While many Tribal members on the Reservation

“look white,” their racial identities are known in the community through other mechanisms.

Dynasty white Anglo families have for generations held the prominent economic and political

positions in the community, and they continue to have a stranglehold on the region’s politics and

economy. Their children and other non-Native children receive privileges in Wolf Point schools,

while Native children are disadvantaged and disparaged.

D. The discriminatory education system on the Reservation is rooted in racist federal

policies.

1. The federal government established assimilationist boarding schools on the

Reservation, designed to segregate Native students and strip them of their

cultural identities.

Before the arrival of white settlers, the Tribes educated their

children in their own culture and traditions.

Beginning in

the 1870s, the federal government brutally imposed Western

education on Native families.

From the 1880s to the

1920s, all school-aged Tribal member on the Reservation

were forced out of their homes and compelled to receive an

education in the federal government’s abusive boarding

school program.

The government’s explicit intent was

complete cultural assimilation of Native children.

The Fort Peck Reservation Boarding School was founded in 1881 and modeled after the

notorious Carlisle Indian School. It was brutally repressive of Native students.

Based on the

premise that Native people are intellectually inferior, the school emphasized vocational

NEIL TAYLOR, THE FORT TRIBES EDUCATION DEPARTMENT: STATE OF RESERVATION EDUCATION REPORT 4

(2014).

Tribes took all responsibility for educating their children and for making whatever changes were necessary

to improve their lives and to perpetuate the Tribes. Children were taught through the extended family.

They were given continuing, daily instruction in survival skills, in living in harmony with other people and

with nature; in spiritual values and in family, kinship and tribal relationships. Certain children learned

special healing, spiritual and leadership skills under certain adult tribal members who had the special

knowledge and abilities and who practiced those special skills. For all children, they watched and learned

from adults as adults met and counseled each other on changes that had to be made when the Tribes

encountered new circumstances or forces that would or could alter their lives.

Id.

Melina Angelos Healey, The School-to-Prison Pipeline Tragedy on Montana’s American Indian Reservations, 37

N.Y.U. Rev. L. & Soc. Change 671, 679 (citing Andrea Smith, Boarding School Abuses, Human Rights, and

Reparations, 31.4 Social Justice 89, 89 (2004) (“by 1909, the federal government had created nearly 200 boarding

schools and 307 day schools, forcing over 100,000 American Indian students to attend, and often removing them

from their homes for several years”)).

MILLER, ET AL. supra note 2, at 159.

Id.

Photo credit: www.thomasleetruewest.com

training.

The federal government required all Native students from the Reservation to attend

the boarding school, but some families fought to keep their children home.

The Fort Peck

Agent

responded with violence and coercion.

The Bureau of Indian Affairs’ Tribal Police

removed children from their families.

Parents hiding their children lost food rations and were

imprisoned. School runaways were publicly ridiculed and subjected to corporal punishment. As

a result of these tactics, enrollment reached 200 in 1887.

While Native children on the Reservation were forced to attend boarding schools, non-Native

children and mixed-race children of Native mothers and white fathers attended separate public

schools. Many non-Native families objected to their children attending school with full-blood

Native children because they believed that the Native children were unsanitary and unhealthy.

The United States government was thus determined to dismantle the Tribes’ cultural identities.

Children detained in the Fort Peck Boarding School were not only removed from their homes

and community, but prohibited from interacting with their Tribal families. They were punished

for speaking their Native language and following traditional customs.

Efforts to “civilize”

This training consisted mainly of “‘manual’ or ‘industrial’ education.” The boys were schooled in agriculture,

blacksmithing, and stock raising, while the girls learned cooking, cleaning, sewing, and etiquette. The focus on

vocational education grew out of the belief that Native people were intellectually inferior. This misconception

persisted for decades. Id. at 160. According to the Fort Peck Reservation Agent at the time, Captain W.A. Sprole,

and Department of the Interior Inspector William J. McConnell, attending the more scholarly off-Reservation

boarding schools and then returning home harmed Native children from the Reservation because it revealed to them

their own hopelessly degraded cultural identities as Native people. Sprole believed that the young women who

returned from off-Reservation boarding schools inevitably turned to prostitution and the young men who returned

simply would no longer be willing to work, for they were now “imbued with the idea of the higher education for the

Indian and no longer accustomed to their natural station in life.” Id. at 155, 163-64.

Id.

An Indian agent was a person designated by the federal government to communicate with the Tribes. Id. at 43.

Id. at 163. Fort Peck Agent Sprole routinely employed violence to ensure compliance with the boarding schools.

For example, when a young boy ran away from the Fort Peck school, his uncle, Red Eagle, informed Sprole he

would have to kill Red Eagle before he allowed Sprole to take his nephew. Sprole dispatched a team to collect the

student and bring in Red Eagle, advising that they use force if necessary. When the agency party arrived at Red

Eagle’s land, Red Eagle resisted and was shot. Sprole reported that the case was taken to federal court and that the

agency was exonerated.

See INDIAN COUNTRY CHILD TRAUMA CENTER, IHS/BIA Child Protection Handbook: Early Initiatives Affecting

American Indian Families 2 (2002),

http://www.icctc.org/Early%20Initiatives%20Affecting%20Indian%20Families.pdf [hereinafter IHS/BIA Child

Protection Handbook]; Nick McCrea, State, Wabanaki Tribes to Sign Mandate, Look into History of Harmful Child

Welfare Practices, BANGOR DAILY NEWS (June 28, 2012), http://bangordailynews.com/2012/06/28/news/state/state-

wabanaki-tribes-to-sign-mandate-look-into-history-of-harmful-child-welfare-practices/. In 1878, the Bureau of

Indian Affairs established Indian Police Forces, wresting law enforcement power from Native leaders and placing it

in the hands of the federal government. The Agents of each Reservation chose Tribal Police Officers. See Edmund

Jefferson Danzinger, Jr., United States Indian Policy During The Late Nineteenth Century: Change and Continuity

(pts. 1 & 2), 12.1 HAYES HIST. J.: U.S. INDIAN POL. (FALL 1992), 12.2 HAYES HIST. J.: U.S. INDIAN POL. (WINTER

1993), http://www.rbhayes.org/research/hayes-historical-journal-u.s.-indian-policy/ (last visited Jan. 26, 2017); see

also US DEP’T OF THE INTERIOR INDIAN AFFAIRS, HISTORY OF INDIAN LAW ENFORCEMENT,

http://www.indianaffairs.gov/WhoWeAre/BIA/OJS/History/index.htm (last visited Apr. 25, 2016).

MILLER, ET AL. supra note 2, at 140.

Healey, supra note 32.

Tribal children persisted even as the government replaced boarding with day schools on the

Reservation in order to educate a larger number of students at a lower cost.

After victimizing several generations of the Tribes’ families and children, the federal

government finally eliminated the boarding and day programs in the 1920s.

But the brutal

cultural genocide the program worked on the Tribes is today a part of the living memories of

many elder Tribal members on the Reservation, who suffered it themselves or were raised by its

victims. Its legacy remains a part of the relationship between the Native community and public

education.

2. The effects of the federal government’s boarding school program persist.

The Native community’s attitude toward public education “goes back to historically not being

able to trust the education system. If parents were violated by boarding schools, they are not

going to have faith in those systems.”

Tribal Community Member #1 recalled that “back when

boarding schools first started . . . [m]y grandma would get beat up if she tried to speak her

language.”

Native children were physically, sexually, and emotionally abused in the boarding schools.

Denied their heritage and underexposed to their cultural values and behaviors, students lost their

Native identity and community.

Native people continue to experience this loss of culture as

“disenfranchised grief,” of the kind “that persons experience when a loss cannot be openly

acknowledged or publically mourned.”

This unresolved grief is then inherited by subsequent

generations.

As a result, Native parents today suffer from high rates of alcoholism and

substance abuse and their children experience anxiety and depression.

During the first decade of the twentieth century, the government established three new day schools on the

Reservation. The off-Reservation boarding schools, on-Reservation boarding school, and on-Reservation day

schools were militaristic and vocational. See TAYLOR, supra note 30; see also MILLER, ET AL. supra note 2, at 200;

CAROLYN J. MARR, UNIVERSITY OF WASHINGTON LIBRARIES, ASSIMILATION THROUGH EDUCATION: INDIAN

BOARDING SCHOOLS IN THE PACIFIC NORTHWEST, http://content.lib.washington.edu/aipnw/marr.html#movement

(last visited May 11, 2016).

JON REYHNER, EDUCATION WEEK, A History of American Indian Education: 1819-2013,

http://www.edweek.org/ew/projects/2013/native-american-education/history-of-american-indian-education.html

(last visited Jan. 26, 2017).

Healey, supra note 32, at 680.

Interview by Melina Angelos Healey with Tribal Community Member #1, Wolf Point, Mont. (Sept. 28, 2015).

See Andrea Smith, Soul Wound: The Legacy of Native American Schools, AMNESTY INTERNATIONAL MAGAZINE

(Mar. 26, 2007), http://www.amnestyusa.org/node/87342; IHS/BIA Child Protection Handbook, supra note 39, at 2.

Maria Yellow Horse Brave Heart, The American Indian Holocaust: Healing Historical Unresolved Grief, 8.2 AM.

INDIAN & ALA. NATIVE MENTAL HEALTH RES. 60, 64 (1988).

Id. at 67.

Id. at 68.

Id. at 66, 69. Because Native people had little experience with alcohol before the government’s violent efforts at

assimilation, their tolerance was low. Yellow Horse Brave Heart suggests that American Indian alcohol abuse can

be explained by the “internalized aggression, internalized oppression, and unresolved grief and trauma” left by the

boarding schools and assimilation efforts.

3. Reservation public schools are segregated by race.

The Reservation has five school districts: Wolf Point, Poplar, Brockton, Frazer, and Frontier

Elementary.

Poplar, Brockton, and Frazer have almost entirely Native school populations. The

Wolf Point District is racially integrated with both Native and non-Native students. It

encompasses three schools: Southside Elementary School (grades K–3), Northside Elementary

School (grades 4–6), and Wolf Point Junior High (grades 7–8) and High School (grades 9–12),

which share a building.

Frontier Elementary is a single-school carved-out district within the

city of Wolf Point, its lines drawn around the city’s white neighborhood.

The district consists

only of Frontier Elementary School (grades K–8). Most of the non-Native children in the Wolf

Point area are enrolled at Frontier Elementary School.

Most graduates of Frontier Elementary

School later enroll in the racially integrated Wolf Point Junior High and High School.

4. Racial gerrymandering of local School Board voting districts deprives Tribal

members of a voice in the policies and practices affecting Tribal children’s

education.

The Wolf Point School District Board of Trustees (“the School Board” or “the Board”) has long

operated under a white stranglehold. In response to the gerrymandering that enabled this white

control, the American Civil Liberties Union filed a complaint in federal court in 2013.

January 2014, the court ordered a consent decree to remedy the malapportionment of voting

power that favored white Wolf Point neighborhoods.

Pursuant to the decree, the Board redrew

its voting district boundaries.

See TAYLOR, supra note 30.

Wolf Point High School also contains an on-site alternative education option, the “Opportunity Learning Center.”

See infra, Section III(B)(2).

But see infra note 54.

Compare U.S. DEP’T OF EDUC., OFFICE FOR CIVIL RIGHTS, 2013 Public Use Data File,

http://www2.ed.gov/about/offices/list/ocr/docs/crdc-2013-14.html [hereinafter OCR 2013] Frontier Elementary

School Data with OCR 2013 Northside and Southside School Data. In academic year 2013–14, Frontier Elementary

School had 127 students of whom fifty-eight percent were Native American and twenty-eight percent were white;

Wolf Point Elementary School had 690 students of whom sixty-seven percent were Native American, sixteen

percent were “Two or More Races” (see infra notes 111–14 for a discussion of why the students classified as “Two

or More Races” are likely Native), and twelve percent were white.

See TAYLOR, supra note 30.

Until 2014, Wolf Point employed a two-part school district: one district’s population was predominantly white,

and its 430 residents elected three members of the School Board. The other district’s population was predominantly

native, and its 4205 residents elected only five members. Thus, each Board member from the predominantly white

area represented 143 residents, while each Board member from the predominantly Native area represented 841

residents. See Consent Decree, Jackson v. Wolf Point School District, No. CV-13-65-GF-BMM-RKS (D.Mont.

Mar. 13, 2014), https://www.aclumontana.org/sites/default/files/field_documents/wolfpointconsentdecree.pdf

[hereinafter Jackson Consent Decree]; see also Press Release, ACLU MONTANA, ACLU Challenges Discriminatory

Wolf Point Voting Districts (Aug. 7, 2013),

https://www.aclumontana.org/sites/default/files/field_documents/wolfpoint08072013final.pdf [hereinafter 2013

Press Release].

See Jackson Consent Decree, supra note 56; see also 2013 Press Release, supra note 56.

Jackson Consent Decree, supra note 56.

With the new voting districts in place, two full Tribal members

and one associate member

now sit on a six-member

School Board. Despite this more equitable representation, the Board

finds ways to exclude Native trustees from major decisions. The non-Native trustees convene

“secret” meetings,

fail to inform Native Board members when important decisions are

scheduled, and fail to include Native Board members in information-sharing emails that circulate

among the white Board members.

When the newly elected Native trustees arrived at the first

board meeting, they discovered the non-Native representatives had already convened to decide

who would serve as chairman and on various committees.

The Native representatives had been

assigned to the less important committees.

5. The domination of non-Native faculty, administration, and leadership

exacerbates the alienation of Native students in District schools.

“Education is a battle of minds,” reports Tribal member Bill Whitehead. “Who controls

education controls what is being taught. We have never been in power to enlighten people to our

perspective.”

Approximately sixty-three percent of students in the District are Native.

School

administration and staff, meanwhile, are only 18.5% Native and school leadership is all non-

Native.

The principals, assistant principals,

and guidance counselors

of Wolf Point Junior

High and High School and the District superintendent

are all non-Native. The current athletic

director and most of the coaching staff at Wolf Point Junior High and High School are non-

Native.

Interview by Rebecca Gerome with Bill Whitehead in Poplar, Mont. (Sept. 30, 2015).

Associate membership is for members with greater than one-eighth and less than one-fourth Tribal blood. See

Hunter Pauli, Barred by Blood, Native News, http://nativenews.jour.umt.edu/2016/barred-by-blood-fort-peck/ (last

visited Feb. 8, 2017).

Jackson Consent Decree, supra note 56.

Interview by Rebecca Gerome with Robert Manning in Wolf Point, Mont. (Sept. 28, 2015).

Telephone Interview by Melina Angelos Healey with Stacey Summers, Fort Peck Tribal Councilwoman (Apr. 26,

2016).

Interview by Rebecca Gerome with Larry Wetsit in Wolf Point, Mont. (Sept. 29, 2015).

Id.

Interview by Rebecca Gerome with Bill Whitehead in Poplar, Mont. (Sept. 29, 2015).

OCR 2013, Southside Elementary School Data; OCR 2013, Northside Elementary School Data; OCR 2013, Wolf

Point 7–8 Data; OCR 2013, Wolf Point High School Data. In 2013–14, the District had a total of 909 students, 577

of whom were Native American.

See TAYLOR, supra note 30, at 38–39.

Telephone Interview by Cassarah Chu and Raquel Villagra with Cookie Ragland (Nov. 3, 2016).

Id.

In May 2016, Rob Osborne assumed the Superintendent position, replacing Gary Scott. Bill Vander Weele,

Osborne Agrees to Be Superintendent, THE WOLF POINT HERALD-NEWS,

http://www.wolfpointherald.com/index.php/wp-news/local-news/5548-osborne-agrees-to-be-superintendent

(last visited Jan. 26, 2017).

Telephone Interview by Melina Angelos Healey with Stacey Summers (July 15, 2016).

Non-Native domination of the District has created a culturally

unwelcoming school environment for Native students. It

undermines Native students’ sense that they can be future

teachers and school leaders, further perpetuating their under-

representation.

The schools’ teaching, coaching, and

discipline methods are inconsistent with Native culture.

Native students often feel misunderstood and frustrated. Their

behavior is misinterpreted as “bad.” District staff and

administration receive no cultural competency training. To

succeed at all, Native students must repudiate their tribal

culture and adjust to the non-Native culture imposed by the

District.

Furthermore, although the District’s schools are

located on a reservation and have majority-Native enrollment,

they do not offer any courses on tribal heritage or language.

Tribal members’ efforts to incorporate Native cultural

education are opposed by school administration.

This culturally hostile environment makes the Native community sense that those in charge of

their children’s education “will not listen,” that Native families are “unwelcome” at the schools,

and that “nothing has been done” in response to parents’ prior attempts to get involved.

Native

parents are treated dismissively by school officials, discouraging them and, in turn, resulting in

low Native participation and voter turnout and continued inequality.

With predominantly or all-white staffs, Fort Peck Reservation schools fail to promote “Native children’s culture

and aspirations.” Stephanie Woodard, ACLU Sues Montana School District for Cheating Native Voters, INDIAN

COUNTRY (Sept. 2, 2013), http://indiancountrytodaymedianetwork.com/2013/09/02/montana-school-district-

charged-voting-rights-violations-151122. According to Larry Wetsit, a Fort Peck Tribal and Wolf Point School

Board member, Native teachers are critical because “when [the] kids go to school they see these people that are our

role models. They say hey, so and so lives down the street. He’s a math teacher. I could be a math teacher.”

Interview by Rebecca Gerome with Larry Wetsit in Wolf Point, Mont. (Sept. 29, 2015). Some argue that there is no

market of Native teachers to select from, failing to recognize that the damage done to Native people in the school

system is cyclical and can lead to this lack of Native teachers. Those Native students who are alienated from or

pushed out of school are less likely to become teachers, and in turn less likely to serve as role models for future

Native students. Remedying discrimination against Native students would thus alleviate one of the major the

challenges Native students face in living up to their potential and becoming teachers and role models, enabling

cycles of success rather than failure.

See, e.g. infra Section III(A)(3)(a).

Interview by Melina Angelos Healey with Annette Linder in Wolf Point, Mont. (July 18, 2016).

Interview by Rebecca Gerome with Ruth Jackson in Wolf Point, Mont. (Sept. 29, 2015).

[Native American Week is] the one time every year when the government allows us to be who we are and

showcase it. November is Native American month. According to the public law regarding [Native]

education, every school district in the state of Montana has to provide an element of [Native] education and

awareness in their curriculum. But you’d think that on a [Native] reservation, that it would be more.

Interview by Rebecca Gerome with Lois Black in Wolf Point, Mont. (Sept. 29, 2015) (“You can’t put Native stuff in

the schools. They won’t let you get a day off like Poplar, Brockton, Frazer. Last week was Native American week

and you can’t do nothing. They did nothing in the Wolf Point school.”).

Interview by Rebecca Gerome with Ruth Jackson in Wolf Point, Mont. (Sept. 29, 2015).

Telephone Interview by Melina Angelos Healey with Ruth Jackson (Sept. 29, 2016).

Interview by Rebecca Gerome with Larry Wetsit in Wolf Point, Mont. (Sept. 29, 2015).

III. UNLAWFUL DISCRIMINATION IN THE DISTRICT

Public school students maintain substantive and procedural rights under the Constitution and

Title VI of the Civil Rights Act of 1964 while at school.”

Like all other citizens, students enjoy

the right to equal protection under the law.

Native students in the District are harassed and pushed out to the Reservation’s all-Native school

districts. They are subjected to more frequent and severe school discipline. They receive

discriminatory treatment during and unequal access to school activities. The District’s staff,

administration, and leadership violate Native students’ due process in discipline proceedings and

the rights of Native students with learning disabilities.

A. The District concentrates power in the white community to the detriment of Native

students’ education.

1. Non-Native families enjoy near exclusive power over the District.

The concentration of political and economic power among non-Native families on the

Reservation is evident in the District. The District is plagued by non-Native nepotism, with the

See Civil Rights Act of 1964, §§ 601, 602, 42 U.S.C. § 2000d; Wood v. Strickland, 420 U.S. 308 (1975); Tinker

v. Des Moines, 393 U.S. 503 (1969).

See Monteiro v. Tempe Union High School Dist., 158 F.3d 1022, 1033 (9th Cir. 1998) (finding that “a school

district violates Title VI when 1) there is a racially hostile environment; 2) the district had notice of the problem; and

3) it failed to respond adequately to redress the racially hostile environment”). A racial discrimination claim can be

found through one of two frameworks: differential treatment and disparate impact. Under a differential treatment

framework, a claim is found through intentional discrimination by school officials, either by direct or circumstantial

evidence, including when a protected class is treated differently or “punished differently” than “similarly situated”

students. See Catherine Y. Kim, Daniel, J. Losen, & Damon T. Hewitt, The School-To-Prison Pipeline: Structuring

Legal Reform 35–36 (2010); see also Alexander v. Sandoval, 532 U.S. 275, 285 (2001) (citing Rogers v. Lodge, 458

U.S. 613, 618 (1982)); see also Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266 (1982). A

“similarly situated” plaintiff must be in circumstances “reasonably comparable” in relevant respects to other

students at the school and must show that “the nature of the infraction and knowledge of the evidence by school

officials” is “sufficiently similar” to that of students who were not disciplined “to support a finding of facial

inconsistency.” See, e.g. Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989) overruled

heightened standard by Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61 (1st Cir. 2004) (“this

requires that the other incidents' circumstances be “reasonably comparable” to those surrounding appellants'

suspensions, and that “the nature of the infraction and knowledge of the evidence by college officials [be]

sufficiently similar”). Under a disparate impact claim, discrimination is found through the disproportionate effect of

policies and practices on a protected class, even if there is no intent by the government actor or school official to

target the particular group. See Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886). Disparate impact claims are

cognizable in state educational systems due to rules attached to the federal funding of schools with certain students

such as American Indian students, and under federal laws meant to prevent discrimination.

See U.S. Dep’t of Just.

and U.S. Dep’t of Educ., Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline, 11

(2008); 3 C.F.R. § 100.3(b)(2); 28 C.F.R. § 42.104(b)(2). Offending educators and institutions may be charged by

the Department of Justice. Recipients of funding specifically will not receive federal funding if they use criteria or

methods of administration which have the effect of subjecting individuals to discrimination because of their race,

color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives

of the program with respect to individuals of a particular race, color, or national origin.

School Board and administration preferentially hiring family for faculty and staff positions.

High level non-Native school leaders are often related to each other or School Board members.

When Wolf Point teachers challenge discriminatory practices or stand up for Native students, the

non-Native leadership often rebuffs or retaliates against them. Wolf Point’s few Native school

teachers are invited to join the Indian Education Committee to discuss how to spend Native-

specific federal funding, specifically Title VII and Johnson O’Malley money, but the invitation is

not for meaningful contribution. The Native teachers, fearing for their jobs, feel pressure to

agree with the powerful white school officials. The voting rights lawsuit against the School

Board exacerbated tensions. Many white community members blame the plaintiffs, spreading

false allegations that it was a ploy by Native community members to make money (no monetary

compensation was sought). After Jennifer Medicine Cloud, a Native Wolf Point High School

teacher, challenged the sports department’s treatment of her daughter, many of her colleagues

and superiors acted as though she “did not exist.”

These experiences instruct Native community

members that questioning school policies and practices risks retaliation by those families who

run the town.

2. The District preferentially hires and promotes members of non-Native families

while failing to hire or promote qualified Native professionals.

In 2014, out of approximately 108 teachers and staff at Wolf Point schools, only twenty were

Native.

The District fails to both hire and promote Native teachers. In 2015, Native Employee

#1, a teacher with significant coaching experience, applied for a girls’ basketball coaching

position at Wolf Point High School and was denied in favor of the daughter of a white School

Board trustee. In 2016, the non-Native School Board chairman hired his son to be a Wolf Point

High School girls’ basketball coach.

Jennifer Medicine Cloud taught at Wolf Point High School for eight years. When she left, she

was one of only two teachers who had a master’s degree in education leadership. She received

numerous statewide awards for her teaching. During her eight years at the school, she saw many

less-qualified, non-Native colleagues receive invitations to serve as substitute principal, though

she never did.

She was invited to serve on the Indian Education Committee, along with her other

Native colleagues, but never to participate on the other more leadership-oriented committees.

She felt the administration had no confidence in her abilities and provided her with no career

guidance. With the existing administration and School Board, she knew that she would be a

classroom teacher forever, so she left Wolf Point High School to teach at the all-Native Poplar

Elementary School.

On the other hand, Ruth Jackson was encouraged to apply for a counseling position by a school

leader at Southside Elementary. Ms. Jackson thought the administrator would say, “I want you

to apply for my position because I think you would be a good asset for the school, you would be

a good team member, you’re good with the families.” Instead, the school leader told Ms.

For example, in the 2015–16 school year, the Wolf Point High School Assistant Principal was son of the District

Superintendent. Interview by Rebecca Gerome with Cookie Ragland in Wolf Point, Mont. (Sept. 28, 2015).

Telephone Interview by Raquel Villagra with Jennifer Medicine Cloud (Oct. 27, 2016).

See TAYLOR, supra note 30, at 38–39.

Jackson, “I want you to apply to my counseling position, because you would make my school

look good. All the Indians I’m ever able to hire are teacher’s aids and janitors.” After this

interaction, Ms. Jackson elected to leave her employment with the District.

As a result of the District’s hiring and promotion practices, qualified Native teachers and staff

are refused employment opportunities and pushed to other school districts.

The ultimate

victims of these practices are Wolf Point’s Native students, who lose the instruction and

mentorship of talented professionals and do not benefit from seeing Native adults as role models

in the classroom.

3. Wolf Point schools’ predominantly white staff and administration fail to connect

with Native students.

The District’s hiring and promotion practices result in predominantly white leadership,

administration, and staff in Wolf Point schools. These employees, lacking culturally-informed

training, often fail to connect with the majority-Native student body, which results in a school

culture that tells Native students they are less worthy than their white classmates.

a. Wolf Point schools fail to train their staff and administration in Native

culture.

The District’s failure to train its faculty and staff in tribal culture alienates Native families.

Local law enforcement, by contrast, does receive minimal cultural competency training. For

example, county

law enforcement officers are instructed not to be suspicious of lack of eye

contact, which Native people often avoid. Tribal members commonly show respect through

thoughtful quietness, and avoiding eye contact is a sign of this respect and not of guilt.

Unfortunately, Native parents, in their interactions with school staff and leadership, feel pressure

to conform to non-Native behaviors and force themselves to make unnatural eye contact in

school meetings. They believe that avoidance of eye contact and other cultural behaviors and

customs are misinterpreted by school staff and punished.

Staff at Wolf Point schools often use aggressive questioning and loud condemnation when

teaching and coaching. Unaccustomed to this manner of interaction, Native students respond

poorly. One Poplar community member noted at a basketball game that the Wolf Point High

School girls’ basketball coach was “animated . . . to the point that he looked almost out of

control,” when directing his anger at a particular Native player.

Native students, under pressure

in such starkly unfamiliar cultural environments, retreat into themselves and tune instruction out.

See, e.g. Interview by Rebecca Gerome with Ruth Jackson in Wolf Point, Mont. (Sept. 29, 2015) (citing the

situation of Ruth’s niece, Jennifer Medicine Cloud, as well as that of another successful Native teacher who was

discouraged from applying for a position with the Wolf Point Junior High School).

See Healey, supra note 32, at 716.

Roosevelt County, Montana covers the majority of the Reservation. Tribal Nations, Montana Governor’s Office

of Indian Affairs, https://tribalnations.mt.gov/tribalnations (last visited Apr. 9, 2017).

Rich McDonald, Written Statement (Mar., 2016) (on file with author).

Expulsion proceedings in the District also conflict with Native students’ cultural upbringing and

expectations. They are closed, with students answering in an isolated environment to the Board

members, often too intimidated to explain their cases.

One commonly held stereotype about Native communities is that of “Indian time.” According to

this stereotype, Native people are perpetually late, suggesting that they are inconsiderate of other

people’s time.

The pejorative term is a misinterpretation of Native values such as patience and

thoughtful consideration of surrounding circumstances.

While in Anglo culture days can be

formally scheduled and structured, many tribes embrace the idea that humans cannot control

everything and that it is best to remain observant and to act when the time is right.

Differing

beliefs on how the day should be structured can lead to misunderstandings regarding student or

parent timeliness and to inappropriate schools responses.

Exacerbating the divide between Native students and District staff, many of Wolf Point schools’

Native students grow up in poverty. Wolf Point’s policies and practices do not meet these

students’ needs.

For example, a Native student who has grown up unable to rely on the adults

in her life may try to resolve a disagreement independently, leading to a physical altercation with

another student. Many Native students from poor families shoulder tremendous responsibilities

outside of school.

Middle-class teachers insensitive to these obligations punish students for

unexcused tardiness and absence without exploring or considering the underlying cause. By not

accounting for cultural and economic differences, Wolf Point schools foster a stifling and even

hostile learning environment that inhibits effective Native instruction.

Interview by Rebecca Gerome with Tribal Community Member #1 in Wolf Point, Mont. (Sept. 28, 2015)

(“Expulsion decisions usually happen in a closed session. They’ll take them into that room. All the board members

are sitting at the table like this around a half shoe. Here’s the student and the parent… It’s intimidating. They have

a chance to plead. ‘Tell me, why would you want to stay in school. Give me your reasoning.’”).

Kelly Gibson, Stereotypes: “Indian Time,” PARTNERSHIP WITH NATIVE AMERICANS (Nov. 3, 2011),

http://blog.nativepartnership.org/my-thoughts-on-stereotypes/.

Id.

Interview by Rebecca Gerome with Nancy Pickett in Poplar, Mont. (Oct. 1, 2015).

So there’s a disconnect there, where the kids are doing what they know, but it doesn’t work at school. The

kids in school here have learned that they can’t really rely on grown-ups to protect them, or anybody, so

they rely on each other. If there’s a disagreement or a bullying issue, they handle it themselves by fighting

physically. That’s against the middle class rules of school so the kids get into trouble and they get

suspended for fighting, when in fact, in order to survive out in the community, they need to be able to do

that. So it’s like having different sets of rules, and either not knowing there are different sets of rules, or

realizing that there are two sets and not knowing when to use them. That’s where a lot of your suspensions

come from.

b. Wolf Point schools fail to embrace Native programming and their Native

legacy.

The lack of training and white-centered attitudes of non-Native faculty accompany a District-

wide culture that disavows and suppresses its unique Native heritage and presence on Indian

territory. Wolf Point High School does not offer courses on Native history or culture. In 2012,

the school offered an Assiniboine language class, but it had a concentrated enrollment of

students with disciplinary issues, essentially turning it into a classroom housing misbehavior.

The class has since been cut. Montana requires its public schools to teach Native history and

culture in their classrooms,

but Wolf Point schools — despite their majority-Native student

body and presence on a reservation — fail to comply with this mandate. Those “cultural”

activities they include tend to be stereotypical, like crafting “dreamcatchers.” They refuse to

acknowledge the Native heritage of the sovereign territory the District occupies, or the cultural

identities of their students, in their public image. Wolf Point High School, for example, does not

bring its sports teams to Native-American classics, the Native-specific basketball tournaments,

acting as though it does not belong with the other Native teams. Its public rejection of its Native

roots intensifies the message that Native students are at the margins in Wolf Point schools.

c. Wolf Point schools violate educational law and offend cultural norms in their

interactions with Native students and families.

Wolf Point officials and teachers disregard federal and state privacy and other laws when they

interact with the families of their Native students. In so doing, they intentionally engage in the

kind of public humiliation of Native children that leads to inequality of opportunity, loss of

dignity, discouragement, and ultimately to pushout for these students.

For example, on March 8, 2017, a teacher at Northside Elementary School sent an unenclosed

postcard to the family of Native Student #22. The text of the postcard, which identifies the

student and is visible to any casual handler, reads in full: “[Native Student #22] is a very bright

young lady but at the same time she can be very rude to her classmates and myself. She also

often struggles to complete assignments without supervision.”

This kind of casual contempt not only for the law

but for the privacy and dignity of a Native

student and her family, is unfortunately characteristic of the District’s attitudes. This teacher

made no effort to otherwise contact or to initiate a constructive dialogue with the family.

Instead, by sending an open postcard criticizing the student, he engaged in the kind of public

shaming that evidences the District’s disregard both of the rights and the cultural sensitivities of

the Native students in its care and their families. As a result, Native Student #22 and her family

felt both unwelcome and devalued in the school.

MONT. CODE ANN. § 20-1-501 (1999).

An open-faced postcard containing sensitive student identifying information and educational and behavioral

records potentially violates federal and state privacy laws. See MONT. CONST. art. 2, § 10 (“The right of individual

privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling

state interest.”) (emphasis added); Family Educational Rights and Privacy Act, 20 U.S.C. 1232g.

4. Wolf Point schools refuse to work with the Native community to address the

epidemic of self-harm and suicide among its vulnerable Native students.

Native students in the District attempt and commit suicide at a devastating rate. Their special

vulnerability has been well documented and is well known to the District.

But it has done

virtually nothing to address this tragedy. Rather, by engaging in the policies and practices

described in this complaint

the District not only demonstrates indifference to but actually

inflames Native students’ vulnerability to self-harm.

Montana has the highest rate of suicide in the nation, and Native youth in Montana have a

suicide rate that is 438% higher than the nation’s average.

In Roosevelt County, where the

District is located, the problem is particularly acute. In 2010, six Native students on the Fort

Peck Reservation committed suicide and twenty others attempted to take their lives.

State-sponsored information readily available to the District shows that effective prevention of

suicide of Native youth requires a culturally-based approach.

100

The physician who worked on

the Reservation during the 2010 child suicide epidemic reports that on Fort Peck, “the problem

was not understanding the people and culture.”

101

In an effort to provide solutions to the

agonizing situation they faced in 2010, the Tribes organized a suicide prevention and

intervention program

102

and offered its services to the District and its schoolchildren.

103

Their

offer was rebuffed, and for six years the District made no efforts to develop any suicide

prevention program at all.

104

In the intervening years, suicidal behavior has increased among

Native youth who go to school on or near a reservation in Montana.

105

In Roosevelt County, for

the year 2015 alone, twenty-eight of 223 high school students attempted suicide at least once.

106

In the spring of 2017, the District’s refusal to work with the Tribes to attend to the risk of suicide

among its Native students had tragic consequences. On March 14, Native Student # 21, a student

who was troubled in school, committed suicide. Several weeks later, Native Student #24, who

See, e.g., Healey, supra note 32; MONT. OFFICE OF PUB. INSTRUCTION, 2015 Montana Youth Risk Behavior

Survey, 26-27 (Sept. 2015), http://opi.mt.gov/pdf/YRBS/15/15MT_YRBS_FullReport.pdf.

See infra Section III(B)-(D).

Amy Linn, A Suicide Crisis in Montana and Beyond, SPOTLIGHT ON POVERTY AND OPPORTUNITY (Dec. 13,

2016), https://spotlightonpoverty.org/spotlight-exclusives/suicide-crisis-montana-beyond/.

Id.

100

See, e.g., KAUFFMAN & ASSOCIATES, INC., Montana Native Youth Suicide Reduction Strategic Plan, 55 (Jan.

2017),

https://dphhs.mt.gov/Portals/85/amdd/documents/Substance%20Abuse/MontanaNativeYouthSuicideStrategicPlan.p

df.

101

Telephone Interview by Lucy Kissel with Dr. Michael Uphues (Apr. 24, 2017).

102

FORT PECK TRIBES SUICIDE PREVENTION, www.fortpecktribes.org/honoryourlife (last visited May 17, 2017); see

also KAUFFMAN & ASSOCIATES, INC. supra note 100, at 38.

103

Telephone Interview by Melina Angelos Healey with Roxanne Gourneau (Mar. 20, 2017).

104

Id.

105

MONT. OFFICE OF PUB. INSTRUCTION, Montana Youth Risk Behavior Survey, 2 (June 2015),

http://opi.mt.gov/pdf/YRBS/15/Trend/15Trend_NAR.pdf.

106

Eric Killelea, Fort Peck Tribes Fighting Back Against Youth Suicide Numbers, THE WOLF POINT HERALD-NEWS,

http://www.wolfpointherald.com/index.php/wp-news/local-news/4697-fort-peck-tribes-fighting-back-against-youth-

suicide-numbers (last visited May 17, 2017).!

the District knew was suffering from bullying in school, made a serious attempt at suicide and

has been hospitalized ever since. Other Native students in the District suffer trauma as a result of

these experiences.

B. District staff and administration bully, harass, and push out Native students.

The District is guilty of more than discriminatory hiring practices and cultural ignorance. Native

students in Wolf Point schools are bullied and harassed because of their race, driving many

Native students to withdraw from Wolf Point schools.

1. Teachers, administrators, and fellow students in Wolf Point schools bully and

harass Native students on the basis of race.

The District tolerates and encourages deliberate mistreatment of Native students in its schools.

107

One Northside physical education teacher physically abused eleven-year-old Native Student #19

by shaking him during gym class. Wolf Point teachers use coded language, and even racial slurs,

to refer to Native students. A former Wolf Point High School principal told a Native student that

she would never amount to anything. In response to a Native student’s question in class, a Wolf

Point High School teacher commented, “See what happens when you’re on drugs?” mocking the

student’s question and reinforcing the harmful stereotype of a drunk or drug-addicted Native.

In a school-wide assembly, a Wolf Point principal announced that students from Frontier

Elementary are superior to students from “town” — in other words, white students are superior

to Native students. Frontier Elementary, with its significantly greater white population, enables

white families to send their children to school alongside far fewer Native children, who are

assigned to predominantly Native elementary schools nearby. This manner of thinly veiled racist

language is common. At Southside Elementary, one teacher commented that “those Headstart

kids are so bad, I can’t stand it when they come over here. . . . [A]ll those little Native kids that

come from Headstart are bad.” This same teacher announced that Native students should not be

allowed to have second portions at lunch, but white students should, because the Native students

“don’t have to pay,” since they are eligible for free lunches under federal poverty programs.

Another Wolf Point High School teacher lamented to a Native student that “Indians aren’t good

at math.”

The schools also encourage non-Native students to parrot racist, intolerant views. Native

Student #7 expressed her frustration following a Wolf Point High School government class

107

This discrimination is not new in the Wolf Point School District. Wilfred Max Bear, a current Elder, recalls that

when he was a student at Wolf Point several decades ago, Native students were given manual typewriters, while

white students were bestowed with electric typewriters for typing classes. Telephone Interview by Melina Angelos

Healey with Wilfred Max Bear (July 16, 2016). See also Nadine Shawl McClurry, Written Statement (Mar. 18,

2016) (on file with author).

While attending [Wolf Point High School] in 1970, four of us Native girls got into an altercation with four

white girls we were all called to the office. While we were in the lobby one of [the white girls’] mothers

came in. She grabbed my arm and asked me if I was the one who fought her daughter. The principal

pointed to my friend—the woman grabbed her by the hair and was dragging her around. The principal did

nothing to stop this but stood and watched.… There has been prejudice in [Wolf Point] for years and now

my granddaughters are the victims.

discussion about the shooting of Michael Brown in Ferguson, Missouri. Native Student #7 was

one of only three Native students in the class, and one of the very few students who believed that

Ferguson police had used excessive force. During the discussion, a white classmate joked, “I’m

glad they killed that nigger.” The teacher did not address the comment. This experience was

familiar to Native Student #7, whose classmates frequently suggested that Native “drunks”

should be thrown in jail. She felt that she was constantly being treated as inferior because she

was Native.

These incidents offer merely a glimpse into the pervasive and ongoing abuse that Native students

face in the District. Unfortunately, taunting and name-calling are only part of the discrimination

that is deeply rooted here, and it goes unaddressed by District officials.

2. Wolf Point schools push Native students out.

Many Native students have no one to stand up for them, and they end up being “brushed under

the rug” by District staff. This hostile environment contributes to Native students feeling

“unwelcome” at school, leading these students to drop out or transfer to school districts much

farther from their homes on the Reservation. They leave even though they were born and raised

in the area and their parents attended Wolf Point schools themselves. The precise extent of

school pushout is difficult to quantify because Wolf Point systematically underreports truancy,

suspension, and expulsion.

The District tolerates bullying of Native students, failing to take action when Native students

suffer acute distress because of it. When students at risk of leaving the schools seek help from

Wolf Point teachers and administrators, the schools ignore and even encourage the pushout.

Native Student #2, a junior at Wolf Point High School during the 2015–16 academic year, was

bullied so much by her volleyball teammates that she quit the team. She reported the bullying to

her coaches, and her family even raised the issue up to the superintendent; these school leaders

failed to take any action. Native Student #2 felt unwelcome at the school and began to have

suicidal thoughts. She later went to the school’s guidance counselor to learn about how to

withdraw from school or graduate early. Even though Native Student #2 had a 4.0 grade point

average and was in the National Honor Society, the guidance counselor rushed to get her the

paperwork she needed to withdraw, without asking whether there was anything she could do to

encourage Native Student #2 to stay in school. Native Student #2 stayed in school with the help

of substantial emotional support from her family, but many students with less supportive families

simply abandon education altogether in response to unaddressed bullying.

At Northside Elementary School, Native Student #1 was bullied regularly. She reported the

bullying to school administration but saw no results. Eventually she announced that she would

rather go to the Juvenile Detention Center than return to school. Finally, out of frustration, her

mother transferred her to another school so she could escape the bullying. Also at Northside,

Native Student #19 was bullied incessantly because of his long, traditionally Native hair.

Native students are also disciplined when they attempt to stand up to bullying. In the 2014–15

school year, a boy in the District had complained three times to his teacher about being bullied,

but nothing was done. When he finally got into a physical fight with one of his bullies, he was

suspended for a week for defending himself.

Wolf Point High School sports programs also harass and disproportionately discipline Native

students, frustrating their athletic ambitions and driving them into other school districts or out of

school. This complaint explores the stories of these students in later sections;

108

their

experiences illustrate the District’s mistreatment of or general indifference toward Native

students.

The schools also exclude students from the high school environment by transferring them to the

mixed-ability level “Opportunity Learning Center” (OLC). Wolf Point High School created the

OLC to warehouse students with academic or behavioral challenges. Those students who are

shifted into the OLC are not counted as suspended, expelled, or transferred, though they are in a

very different setting.

109

Families who challenge the abusive atmosphere in Wolf Point schools often ultimately give up,

finding it better worth their energy to transfer out. Jennifer Medicine Cloud, who left Wolf Point

High School to teach at all-Native Poplar Elementary School, drives herself and her children

twenty-two miles to and from school every day in order to avoid the District. She is not alone.

Each year some Native students who start the year at their home school district, Wolf Point,

transfer to Native-run Reservation school districts such as Poplar, Brockton, and Frazer.

The District has a financial incentive to retain Native students just until the fall semester “head

count” date, and then to get rid of them once that date has passed by employing these pushout

methods. Indeed, once the District receives federal funds specifically allocated for Native

student enrollment, they begin to “weed out” Native students. The money does not follow the

students who transfer to other districts. Thus, those schools that eventually receive these

students do not benefit for the balance of the academic year from their equitable share of this

Native-specific federal funding, and their resources are strained by the influx of Native students

fleeing from Wolf Point.

C. District staff and administration discipline Native students more frequently and

harshly than white students.

In addition to this undocumented harassment, bullying, neglect, and pushout, Wolf Point schools

disproportionately impose formal discipline on Native students. Anecdotal evidence, data, and

official policy demonstrate this discrimination.

108

See infra Section III(D)(3)(c)-(e).

109

For more information about the OLC, see infra Section III(D)(4). Additionally, Wolf Point High School’s

informal undocumented pushout from regular classrooms and into the OLC is not accounted for in the statistical data

on disproportionate discipline, see infra Section III(C), even though OLC is known as a warehouse for Native

students with behavioral or learning issues.

1. Federal data show disproportionate discipline of Native students in Wolf Point

schools.

The most recent data from the Office of Civil Rights (OCR) “Civil Rights Data Collection”

(CRDC) show that Native students in the District are removed from their regular classroom

settings at disproportionate rates.

In 2011, OCR introduced a new racial classification category for CRDC, “Two or More

Races.”

110

This category can obscure discrimination in places such as reservations and border

towns in Indian Country. The Reservation is almost exclusively Native and white, or some

biracial mixture thereof. Because of this, the “Two or More Races” category disguises the extent

to which discipline disproportionality affects Native people because it does not allow cross-

identification of “Two or More Races” with any other racial category. America’s indigenous

populations are the racial or ethnic group most likely to identify as more than one race.

111

In 2015, a survey by the Pew Research Center found that fifty percent of Americans identified as

“Two or More Races” are a mixture of Native American and white.

112

This represents an

increase over those so identifying during the 2010 Census, when forty-four percent of people

who reported their race as American Indian or Alaska Native reported it alongside another

race.

113

By contrast, only three percent of people who reported their race as white reported it

alongside another race.

114

Native people are uniquely conscious of being racially mixed, as tribal

membership and qualification for certain federal benefits are contingent on establishing a

particular lineage and blood quantum.

115

In the 2013–14, school year, students in the District classified as “Two or More Races” were

almost certainly Native. Because of this, the CRDC data has become a less reliable indicator

than in previous reporting years for how severely Native students are targeted for discipline.

Aggregating the non-white (again, undoubtedly Native) students, and comparing them to white

students, paints a clearer picture of the discrimination Native students face than comparisons

between the exclusively Native racial classification and white students.

116

110

72 Fed. Reg. 59,266 (Oct. 19, 2007).

111

See U.S. CENSUS BUREAU, 2010 Census Briefs, The Two or More Races Population: 2010, 20 (Sept. 2012),

https://www.census.gov/prod/cen2010/briefs/c2010br-13.pdf.

The two numerically smallest race groups — the American Indian and Alaska Native population and the

Native Hawaiian and Other Pacific Islander population — were unique in that large proportions of these

populations reported more than one race. In fact, they had the highest percentages reporting multiple races

of all race groups. Of the 5.2 million individuals who reported American Indian and Alaska Native alone

or in combination, 44 percent, or 2.3 million, reported American Indian and Alaska Native as well as at

least one other race.

112

PEW RESEARCH CENTER, Multi-Racial In America (June 2015), http://www.pewresearch.org/multiracial-voices/.

113

See U.S. CENSUS BUREAU, 2010 Census Briefs, The Two or More Races Population: 2010, 20 (Sept., 2012),

https://www.census.gov/prod/cen2010/briefs/c2010br-13.pdf.

114

Id.

115

See Appleton, supra note 9.

116

See U.S. DEP’T OF EDUC., OFFICE FOR CIVIL RIGHTS, 2009 Public Data,

http://ocrdata.ed.gov/Page?t=s&eid=277652&syk=5&pid=1 [hereinafter OCR 2009], Wolf Point High School; U.S.

DEP’T OF EDUC., OFFICE FOR CIVIL RIGHTS, 2011 Public Data,

Data on the Hispanic student population

can, like the “Two or More Races”

category, be similarly confusing in this

context. Under the OCR collection

schema, students can self-identify as

ethnically Hispanic “of any race” as an

independent racial classification.

117

Any

additional racial classification with which

they identify is ignored if they have

selected the “Hispanic” box. Those

students in Wolf Point who identified as

Hispanic are likely also at least part

Native. Notably, these students endure the

most severe disciplinary discrimination.

Although they comprised only six percent of the student population in 2013–14, Hispanic

students made up eighteen percent of students receiving at least one in-school suspension,

nineteen percent of students receiving at least one out-of-school suspension, and sixty-seven

percent of students receiving an expulsion without educational services.

118

In 2013–14, non-white students at Wolf Point High School were more than twice as likely to be

suspended as their white peers.

119

http://ocrdata.ed.gov/Page?t=s&eid=277652&syk=6&pid=732 [hereinafter OCR 2011], Wolf Point High School.

Students identified in Wolf Point High School’s “Two or More Races” category are most likely all Native

American. In 2009, before the new racial category was included, Wolf Point High School had a total enrollment of

250 students: seventy-five were white (thirty percent), 170 were Native American (sixty-eight percent), and five

were Hispanic (two percent). In 2011, Wolf Point High School had a total enrollment of 243 students: sixty-seven

were white (27.6%), 139 were Native American (57.2%), twenty-eight were “Two or More Races” (11.5%), and

seven were Hispanic (2.9%). While the number of white students at Wolf Point High School stayed relatively

consistent from 2009 to 2011 (seventy-five to sixty-seven), the reported Native enrollment dropped from 170 to 139.

This change in Native enrollment tracks the twenty-eight students under the new “Two or More Races” category.

Thus, students in the “Two or More Races” category on the Reservation are most likely Native American and this

complaint focuses on comparing the OCR data for white versus non-white students in the District.

117

See U.S. DEP’T OF EDUC., OFFICE FOR CIVIL RIGHTS, 2013–2014 Civil Rights Data Collection Frequently Asked

Questions 5-6, https://www.educateiowa.gov/sites/files/ed/documents/2013-2014%20CRDC%20FAQs.pdf

(describing the steps that educational agencies must take to determine the racial classification of individual students

for CRDC purposes).

118

See OCR 2013, Wolf Point High School. In 2013, only thirteen of the 219 enrolled students (5.9%) were

Hispanic. Thirteen of the seventy-two students with at least one in-school suspension were Hispanic (18.1%),

meaning every student of this ethnic population received at least one in-school suspension. Six of the thirty-two

students with at least one out-of-school suspension were Hispanic (18.8%). Four of the six expelled students were

Hispanic (66.7%).

119

See OCR 2013, Wolf Point High School. While only 18.4% of white students received at least one in-school

suspension, 37.1% of non-white students received at least one in-school suspension. 8.2% of white students

received at least one out-of-school-suspension, but 16.5% of non-white students received at least one out-of-school

suspension.

Percentage of White and Non-White Students

with One or More In-School Suspensions at Wolf Point High School

120

Percentage of White and Non-White Students

with One or More Out-of-School Suspensions at Wolf Point High School

121

120

See OCR 2013, Wolf Point High School. Seventy-two students total received at least one in-school suspension:

nine were white, thirty-two were Native American, eighteen were “Two or More Races,” and thirteen were

Hispanic. Total enrollment at Wolf Point High School during this period was 219. Forty-nine of those students

were white. The remaining 170 non-white students were Native American (n=118), students of “Two or More

Races” (n=37), Hispanic (n=13), and Asian (n=2). Thus, nine white students of a total white population of forty-nine

(18.4%) received an in-school suspension, while sixty-three non-white students of a total non-white population of

170 (37.1%) received an in-school suspension.

121

Id. Thirty-two students were disciplined with one or more out-of-school suspensions; four were white, sixteen

were Native American, six were “Two or More Races,” and six were Hispanic. Total enrollment at Wolf Point High

School during this period was 219. Forty-nine of those students were white, 118 students were Native American,

thirty-seven students were “Two or More Races,” thirteen students were Hispanic, and two students were Asian.

Four white students of a total white population of forty-nine (8.2%) received an out-of-school suspension, while

twenty-eight non-white students of a total non-white population of 170 (16.5%) received an out-of-school

suspension.

In 2013, white students at Wolf Point High School were twenty-two percent of the total student

population, but only thirteen percent of students with at least one in-school suspension and

thirteen percent of students with at least one out-of-school suspension.

122

Seventy-eight percent

of the students at Wolf Point High School were non-white, but this population comprised eighty-

seven percent of students with at least one in-school suspension and eighty-seven percent of

students with at least one out-of-school suspension.

123

Notably, all six of the students who were formally expelled from Wolf Point High School in the

2013–2014 school year were non-white.

124

This does not account for the several additional

informal and undocumented expulsions that Wolf Point High School families reported during

that period.

This pattern of racial disparity in discipline is also present at Wolf Point Junior High, where

students from the majority-Native Northside Elementary School, and students from nearby

Frontier Elementary School District, which enrolls most of the city’s white youth, combine to

attend secondary school together.

125

In 2013–14, non-white students were forty percent more likely to receive an in-school

suspension and more than twice as likely as white students to receive an out-of-school

suspension.

126

122

See OCR 2013, Wolf Point High School. Nine of the seventy-two students disciplined with an in-school

suspension were white (12.5%), thirty-two were Native American (44.4%), eighteen were “Two or More Races”

(twenty-five percent), and thirteen were Hispanic (18.1%). Thus, thirteen percent of students receiving at least one

in-school suspension were white, and eighty-seven percent were non-white. Thirty-two students were served with at

least one out-of-school suspension. Four of the thirty-two students were white (12.5%), while twenty-eight were

non-white (87.5%). Specifically, sixteen were Native American (fifty percent), six were “Two or More Races”

(18.8%), and six were Hispanic (18.8%).

123

Id.

124

!See id. No white students were expelled from Wolf Point High School; four Hispanic and two students of the

“Two or More Races” category were expelled in 2013–14.!

125

See OCR 2013, Northside Elementary School; OCR 2013, Frontier Elementary School District. Northside

Elementary School (serving grades 4–6), had 187 students in 2013. One hundred thirty-three were Native American

(71.1%), nineteen were white (10.2%), twenty-eight were “Two or More Races” (fifteen percent), and seven were

Hispanic (3.7%). Frontier Elementary School (serving grades K–6), had a higher absolute number and proportion of

white students in its population. In 2013, Frontier Elementary School had 106 students. Sixty-four were Native

American (60.4%), twenty-eight were white (26.4%), four were Asian (3.8%), four were black (3.8%), two were

Hispanic (1.9%), two were Native Hawaiian/Pacific Islander (1.9%), and two were of “Two or More Races” (1.9%).

126

See OCR 2013, Wolf Point Junior High. Five out of the sixteen white students (31.3%) received one or more in-

school suspensions, while fifty-three of the 122 non-white students (43.4%) received one or more in-school

suspensions.

Percentage of White and Non-White Students

with One or More In-School Suspensions at Wolf Point Junior High

127

Percentage of White and Non-White Students

with One or More Out-of-School Suspensions at Wolf Point Junior High

128

127

See OCR 2013, Wolf Point Junior High.

128

Id. Two of the sixteen white students were suspended (12.5%), while thirty-three of the 122 non-white students

(twenty-seven percent) were suspended.

White students at Wolf Point Junior High made up twelve percent of the overall student

population in 2013–14, yet comprised only nine percent students receiving in-school

suspensions, six percent of students receiving out-of-school suspensions, and zero percent of the

expelled population.

129

As in Wolf Point High School, while a number of non-white students were expelled, not a single

white student was expelled from Wolf Point Junior High School.

130

This racial disproportion is particularly probative because it has occurred in the District’s single

racially integrated Junior and Senior High School. The data demonstrate that this single school

inflicts glaringly different discipline on students of different races.

131

It is far more common to

find statistical evidence of discrimination in multi-school school districts with racially

disproportionate disciplinary patterns across multiple racially segregated schools that have varied

institutional philosophies about discipline.

Notably, these data only represent Wolf Point’s formally documented discipline practices. Since

its unequal disciplinary practices received negative publicity several years ago,

132

the District has

begun to underreport student truancy, suspensions, and expulsions. In addition, as described

below, Wolf Point schools frequently neglect to call parents to inform them when students are

disciplined and simply send them home. Furthermore, Wolf Point schools adopt numerous other

techniques for disproportionately targeting and punishing Native students that fall outside of the

discipline categories that schools are required to report to OCR.

133

2. Wolf Point schools target Native students for discipline.

Native students are punished differently and more frequently than their white classmates for the

same disciplinary violations. Native parent Annette Linder tells her children and other Native

students to fly “under the radar” because teachers and administrators excuse and rationalize

white students’ behavior, but they will not make the same accommodation for Native students.

When Native students display behavioral problems teachers send them out of the classroom

indefinitely so they spend their school days isolated rather than learning.

134

Meanwhile, when

129

See OCR 2013, Wolf Point Junior High. In 2013, total enrollment was 138 students. Sixteen were white (11.6%),

ninety-four were Native American (68.1%), nineteen were “Two or More Races” (13.8%), seven were Hispanic

(5.1%), and two were Asian (1.4%).

130

Id. In 2013, four students were expelled, two of Native American descent, and two of Hispanic descent.

131

Although OCR separates the data for the junior high school (grades 7–8) from the senior high school (grades 9–

12), Wolf Point Junior High and High School are located on the same campus and operate under the same

administrative team.

132

See, e.g. Stephanie Woodard, INDIAN COUNTRY TODAY, Montana’s Pipeline to Prison—and Suicide—for Native

Kids (Dec., 2013) https://indiancountrymedianetwork.com/news/politics/montanas-pipeline-to-prisonand-suicidefor-

native-kids/.

133

See, e.g., Section III(B)(2).

134

See, e.g. Interview by Rebecca Gerome with Cookie Ragland in Wolf Point, Mont. (Sept. 28, 2015).

Wolf Point teachers and administrators] say, “go sit on the bench out there and when the bell rings you can

go.” That’s not appropriate, because it teaches a kid, if you do these behaviors, then you’re going to get out

of the classwork and you’re going to go down there to the office and you’re going to have to sit on the

bench and nothing is really talked [about]. You don’t learn to deal, they don’t learn the social skills how to

white students misbehave, teachers and administrators work with them closely to solve the

problem.

Native students in the District are conditioned to accept this different treatment from an early

age. After a non-Native student shot a hair tie across the classroom, Native Student #24 picked it

up off the ground and was subsequently accused of wielding a “concealed” or “deadly” weapon.

Despite attempting to explain the situation, Native Student #24’s teacher banned her from

participating in an important college trip and gave her an in-school suspension, saying “why

don’t you just leave and find some place to go? I just don’t like you.” The non-Native student

who shot the hair tie was not punished and was allowed to participate in the college visit.

Even at Frontier Elementary School, the racially mixed elementary school that feeds into Wolf

Point Junior High and High School, parents report similar issues of targeted discipline. Native

Student #17 told her teacher that two white boys on the bus were “doing nasties to each other.”

The teacher merely told the two boys to stop, but denounced the girl as a “troublemaker” and

banned her from the state science fair competition. Having worked hard on her volcano, the

punishment destroyed the girl’s spirit. Her grandmother believes the punishment was so much

more severe than the boys’ punishment because she is a Native child who speaks up. Native

Student #17’s great aunt asked the superintendent if the teacher’s approach was a “white-black

thing.” The superintendent responded that he was “done with the conversation.” Native students

and their families learn to expect this behavior from school officials from elementary school

through to high school.

3. Wolf Point schools enforce disciplinary policies designed to target Native

students.

Wolf Point schools establish facially neutral policies and practices related to truancy, lateness,

and parental support that intentionally target Native students. Native students in Wolf Point

disproportionately struggle with truancy and absence.

135

They are often in the informal care of

grandparents or friends, have unusually large responsibilities for themselves and their families,

live in poverty, and experience significant trauma.

136

These burdens and stressors in their home

lives contribute to higher rates of Native truancy. Instead of encouraging and supporting those

Native students who are tardy, absent, or lack family support, Wolf Point schools use these

circumstances to selectively exclude or eliminate Native students.

Percentage of Students by Race Who Are Chronically Absent

behave in a group, they don’t learn what’s appropriate, we don’t teach them what’s appropriate. Their

house is chaotic so they learn to be chaotic. They don’t have to be accountable for anything. I see it over

and over: “Go sit on the bench, get out of that class, go wander around.” The Native kids, they sit on the

bench outside. The white kids, it’s “well come in here and have a donut. We’ll talk about this.” There’s no

disciplinary consequences for them and it just kind of depends on who your parent is, until you are just so

frustrated that you don’t come back. And that’s the hope: that you don’t come back.

135

See infra Section III(C)(3) chart displaying Percentage of Students by Race Who Are Chronically Absent at Wolf

Point High School.

136

See generally Healey, supra note 32.

at Wolf Point High School

137

Many teachers at Wolf Point High School lock their doors after class has started. Tardy students

are left to wander the halls for the entire class period. This zero-tolerance policy tells Native

students that no one cares whether they are in the classroom. This policy likewise fails to

account for cultural differences in the conception of time and, most important, many Native

students’ legitimate reasons for tardiness.

138

The District demands that students have a stable home life and ongoing parental support in order

to participate in activities. Many Native students cannot rely on this kind of support and so are

foreclosed from participation. For example, during their senior year, Wolf Point High School

students fundraise for a graduation trip. Native Student #4, a senior, was raised by his

grandmother until the age of eighteen and was then left on his own. At eighteen years old, he

believed he did not need parental consent for the trip, but his teacher required it — even though

he had no parent to ask. He was excluded from the trip because he did not have a signed parental

consent form. This kind of school policy, common at Wolf Point, while facially neutral, actually

targets only Native students, some of whose unconventional family structures make it harder for

them to obtain the demanded paperwork.

The District’s truancy policies also disproportionately exclude Native students from school

activities. Wolf Point High School prohibits participation in the senior trip by students who have

missed over fifteen days of school, even if they are still on track to graduate. This policy enables

137

See OCR 2013, Wolf Point High School. Chronically absent students are those who have missed at least fifteen

days of school in a school year. In 2013–14, eighty percent of Native Students (ninety-four out of 118 total), thirty-

three percent of white students (sixteen out of forty-nine total), and fifty-nine percent of “Two or More Races”

students (twenty-two out of thirty-seven total) were chronically absent.

138

See infra Section III(A)(3)(a) for discussion of the “Indian time” stereotype.

the school to enlist Native students in raising money for the trip even when it knows that most of

those students will not be able to go on the trip. This is widely viewed by the Native community

as a tactic to reduce Native participation in the overwhelmingly white trip. In fact, the school

does not raise enough money for all students to participate.

The schools’ facially neutral truancy policies also target Native parents. If students miss a

certain number of days of school, parents are threatened with criminal charges and the

involvement of child welfare services. Yet Wolf Point schools do not promptly notify parents

when they have suspended a student or when students are absent without excuse, making it

impossible for parents to help ensure their kids are in school.

139

In these ways, the District

subjects Native students and families to disproportionate mistreatment and discipline under the

guise of generally applied policies.

D. District staff and administration treat Native students differently in school activities.

Native students in Wolf Point schools suffer unequal treatment in class and in afterschool

programs. When they voice dissatisfaction with these practices they are punished.

1. Wolf Point schools deny Native students critical academic opportunities.

The District’s culturally hostile learning environment and its exclusion of Native students from

the classroom have a negative impact on Native academic performance. Native students at Wolf

Point High School have abysmally low proficiency levels in reading, math, and science,

especially in comparison to the higher-performing white students within the same school. In

2012–13, the most recent school year for which data is available, only seventy-one percent of

Native students were proficient in reading, eleven percent were proficient in math, and five

percent were proficient in science.

140

The white student population, receiving preferential

treatment by teachers and administration, have far higher proficiency levels: ninety-four percent

139

Interview by Melina Angelos Healey with Annette Linder in Wolf Point, Mont. (July 18, 2016). Annette notes

the hypocrisy inherent in threatening parents with potential jail time for child neglect by calling social services if a

child is absent for a certain number of days, and meanwhile frequently failing to notify parents when their child has

been suspended, and dismissing them from school grounds alone.

140

The most recent year for which reading, math, and science proficiency data is available through the Montana

Office of Public Instruction (“OPI”) is 2012–13. During that testing period, overall, seventy-one percent of Native

students were proficient in reading (thirteen percent were “Advanced” and fifty-eight percent were “Proficient”) and

twenty-nine percent were below proficiency (thirteen percent were “Nearing Proficiency” and sixteen percent were

“Novice”). Overall, eleven percent of Native students were proficient in mathematics (three percent were

“Advanced” and eight percent were “Proficient”) and eighty-nine percent were below proficiency (forty-seven

percent were “Nearing Proficiency” and forty-two percent were “Novice”). Overall, five percent of Native students

were proficient in science (zero percent were “Advanced” and five percent were “Proficient”) and ninety-four

percent were below proficiency (thirty-nine percent were “Nearing Proficiency” and fifty-five percent were

“Novice”). Five percent of the Native students were not tested for reading and math, and eight percent were not

tested for science. Montana OPI notes that percentages within student groups may not add up to 100% because of

rounding. See MONT. OFFICE OF PUB. INSTRUCTION, GEMS DATABASE,

http://gems.opi.mt.gov/StudentAchievement/Pages/CRTProficiencyComparisons.aspx (last visited Nov. 29, 2016)

(“School Year” is “2012–2013”; “Grade” is “10th”; “Alternate Assessment” is “All”; “State/District/School” is

“Wolf Point High School”; “Content Area” is “Reading” then “Math” then “Science”).

of white students were proficient in reading, fifty-one percent in math, and fifty-one percent in

science.

141

Percentage of Students Below Proficiency in Reading, Math, and Science

by Race at Wolf Point High School

142

This alarming disproportionality results from a discriminatory education system in which Native

students are discouraged from pursuing academic opportunities.

Wolf Point High School’s advanced courses that prepare students for college are also

disproportionately white. According to the most recently available OCR data, seventy-eight

percent of the students at Wolf Point High School were non-white, but only forty-six percent of

students enrolled in calculus and only sixty-seven percent of students enrolled in chemistry were

141

Id. In 2012–13, overall, ninety-four percent of white students were proficient in reading (fifty percent were

“Advanced” and forty-four percent were “Proficient”) and six percent were below proficiency (zero percent were

“Nearing Proficiency” and six percent were “Novice”). Overall, fifty-one percent of white students were proficient

in mathematics (thirteen percent were “Advanced” and thirty-eight percent were “Proficient”) and fifty-one percent

were below proficiency (thirty-eight percent were “Nearing Proficiency” and thirteen percent were “Novice”).

Overall, fifty-one percent of white students were proficient in science (thirteen percent were “Advanced” and thirty-

eight percent were “Proficient”) and forty-nine percent were below proficiency (forty-four percent were “Nearing

Proficiency” and five percent were “Novice”). Montana OPI notes that percentages within student groups may not

add up to 100% because of rounding.

142

Id. (“School Year” is “2012–2013”; “Grade” is “10th”; “Alternate Assessment” is “All”; “State/District/School”

is “Wolf Point High School”; “Content Area” is “Reading” then “Math” then “Science”). The proficiency data in

this complaint is limited to white and Native American students, as there is no “Two or More Races” category, and

data is unavailable for Hispanic and Asian students at Wolf Point High School. Montana OPI, in an effort to protect

the identity of students, does not report proficiency data when 1) fewer than 10 students were reported in the grade

or standard, or 2) all students were reported in a single performance category.

non-white.

143

In 2013, white students were four times as likely to be enrolled in calculus, and

nearly twice as likely to be enrolled in chemistry, as their non-white peers.

144

This pattern of

under-enrollment of non-white students also appears at the junior high level. White students

were twice as likely as non-white students to be enrolled in Algebra I.

145

Of the fifteen students

at Wolf Point Junior High held back in 2013, not a single one was white and of the thirty

students held back at Wolf Point High School, only four were white.

146

Wolf Point High School offers Advanced Placement and college credit courses, which are

theoretically open to everyone. Enrollment in these courses, however, is based on teacher

recommendation, and is largely discretionary. With the exception of the more quantitative

courses, such as calculus, selection is not based on grades. Teachers handpick students they like

and point to class participation and other subjective assessments to justify selecting their favorite

students. Native students are disproportionately excluded from these classes. One Native

student reported that out of seventeen students in her Advanced Placement course one year, only

four were Native.

Native Student #5 was enrolled during her junior year in the state’s core required classes, but

nothing else other than non-academic electives.

Her guardian took notice and attempted to meet

with the school principal or guidance counselor to enroll Native Student #5 in more challenging

classes to prepare her for college. The school told her that it would schedule a meeting, but

continually brushed her off. The administration then told Native Student #5 that her guardian

was making trouble by trying to advocate for her, and even advised her to that if she ever felt

threatened by this advocacy she should tell a counselor or the police. Native Student #5’s

guardian ultimately abandoned her efforts to meet with administrators about her child’s schedule.

The series of interactions convinced her that the school did not care about Native Student #5’s

education. Not only are Wolf Point schools failing to meet the academic needs of Native

students, but they intentionally perpetuate inequality of opportunity.

2. Wolf Point schools deny Native students equal guidance and college counseling.

143

See OCR 2013, Wolf Point High School. Non-white students are less likely to be enrolled in college and career

readiness courses than white students. In 2013, only six out of the 170 total non-white student population were

enrolled in calculus (3.5%); the other seven students enrolled in calculus were white out of the forty-nine total white

student population (14.3%). During the same period, Wolf Point’s chemistry class had twelve students. Four out of

a total forty-nine white students (8.2%) and eight out of a total 170 non-white students (4.7%) were enrolled in

chemistry. Specifically, the eight non-white students were Native American (n=4), “Two or More Races” (n=2),

and Asian (n=2).

144

Id.

145

See OCR 2013, Wolf Point Junior High. Four of the eighteen students in algebra were white (22.2%), ten were

Native American (55.6%), two were Asian (11.1%), and two were “Two or More Races” (11.1%). Thus, twenty-

five percent of the white student population (four out of sixteen total) was enrolled in algebra, while only twelve

percent of the non-white student population (fourteen out of 122 total) was enrolled. In 2013, although eighty-eight

percent of enrolled students were non-white, only seventy-eight percent of the students enrolled in Algebra I in

seventh or eighth grade were non-white.

146

See OCR 2013, Wolf Point Junior High; OCR 2013, Wolf Point High School. Thirteen of the retained students at

Wolf Point Junior High were Native American (86.7%) and the other two were “Two or More Races” (13.3%). At

Wolf Point High School, four of the retained students were white (13.3%), two were “Two or More Races” (6.7%),

two were Hispanic (6.7%), and twenty-two were Native American (73.3%).

Wolf Point schools fail to counsel Native students, leaving them adrift when they need guidance.

Stories like the one involving National Honor Scholar Native Student #2, whose guidance

counselor was quick to help her drop out of school rather than address her classmates’ bullying,

are common.

147

Native students are similarly brushed off by college counselors. Wolf Point

High School’s college advisors work with the top white students in the class to secure

scholarships and neglect their duties to the rest of the student body. Most Native students’

parents did not attend college and do not know how to assist their children with the application

process.

The high school’s college counselors advise Native students to apply only to Fort Peck

Community College because that is the best they can hope to accomplish. The counselors do not

encourage students to go to the much larger land grant school, Montana State University in

Bozeman, and fail to inform Native students that the University has the same tuition waivers as

the community college. Native students capable of getting into Montana State University do not

apply because they assume they cannot afford it, and their college counselors do not inform them

otherwise. Additionally, many colleges require certain school credits that Native students were

either never advised to take or lacked any opportunity to take. For example, many colleges

require three math classes for all incoming freshmen. Wolf Point High School, however, does

not encourage Native students to take three math classes, and many do not realize their

applications are deficient until it is too late. When Wolf Point counselors see the transcripts of

these students, they disclaim any responsibility, claiming that the students’ class registration is

not part of their job. Many colleges also require a foreign language credit. The high school does

not offer a foreign language, so families aware of the requirement arrange for their children to

take a language credit online. For the families unaware of the requirement, typically Native

families, the school provides no information or remedy. The District’s counseling practices close

academic opportunities to Native students.

3. Wolf Point schools’ sports programs subject Native students to bullying,

harassment, exclusion, and disproportionate discipline.

a. Basketball holds heightened importance in the Native community and

provides opportunities for child development, excellence, and recognition.

In northeastern Montana, high school basketball is king, and as is the case in many rural Native

communities, high school basketball is the Reservation’s most celebrated institution.

148

One

147

See infra Section III(B)(2).

148

See JAMES SHANLEY et al., A Renewed Tribal Government, and Economic and Social Development:

Rediscovering Potential, 1960–1980, in THE HISTORY OF THE FORT PECK RESERVATION ASSINIBOINE AND SIOUX

TRIBES, 1800–2000, 474 (David Miller et al., ed., 2012).

As the Assiniboine and Sioux look back through the last forty years of the twentieth century, reservation

families can be pleased with themselves, the building of their communities, and their accomplishments,

especially in the area of sports. High schools like Frazer, Brockton, Poplar, and Wolf Point have produced

some of the best athletes in the state. Whether they run cross-country or compete at basketball, the athletes

from the Fort Peck Reservation remain unsurpassed in their athletic prowess. Between Poplar and Wolf

Point, they hold twelve state basketball championships. Frazer, Brockton, and Poplar are renowned for

their state cross-country champions and their impressive runners.

Wolf Point school employee reports that “sometimes basketball is the only reason they come to

school.” For many students, basketball is the only reason to come to and stay in school because

they must keep their grades up to be eligible to participate in school sports. While the facilities

of the Wolf Point High School, contained within a low-slung, shabby brick building, are

unremarkable in almost every way, the basketball gymnasium is an expensive and gleaming

cathedral to the sport.

Reservation high schools have produced some

of the state’s best athletes.

149

Basketball also

teaches Native children valuable lessons and

provides them with the “excitement and

energy” that are often lacking on the poverty-

stricken Reservation. According to Native

journalist Sarah Sunshine Manning, “Through

basketball, many of us found our power, and

we even learned valuable life lessons,

sometimes otherwise unbeknownst to us

outside of the game . . . . [T]he energy of the

game was reliable and always palpable.”

150

Native children find a home in this culturally

significant recreation, develop a healthy self-image, and discover their potential.

151

The

Reservation comes together and maintains hope through the sport. Even after the season ends,

community members continue to play “reservation basketball,” which includes dirt courts in

tribal gyms with Native tournaments or even games of “21,” “horse,” or “around the world” with

family.

152

The game is a way of life and a way to strive for the future. According to Manning,

through basketball, “When our young relatives win, we all win.”

153

Basketball is significant among both Native and non-Native residents in the region; it is the most

important sport in eastern Montana, and the most notable avenue for young people to achieve

local fame, support, and access to collegiate scholarships.

154

Both Tribal and non-Tribal media is

dominated by school sports coverage with a primary focus on basketball.

155

Wolf Point is one of

149

SHANLEY et al., supra note x at 474.

150

Sarah Sunshine Manning, Love and Rez Ball, State Titles, and Community Hope, INDIAN COUNTRY (Mar. 1,

2016) http://indiancountrytodaymedianetwork.com/2016/03/01/manning-love-and-rez-ball-state-titles-and-

community-hope-163595.

151

Michael Powell, In Navajo Nation, a Basketball Elder Earns Respect, N.Y. TIMES (Jan. 1, 2017)

https://www.nytimes.com/2017/01/01/sports/basketball/navajo-nation-raul-mendoza-arizona.html?emc=eta1&_r=0;

Carmen Renee Thompson, ‘Rezballers’ hold nothing back on the court, ESPN (Nov. 20, 2009)

http://espn.go.com/highschool/rise/news/story?id=4666620.

152

See Powell, supra note 244.

153

Id.

154

During the Annual Elks Award Banquet, seniors receive awards and some even receive scholarships. THE WOLF

POINT HERALD-NEWS 2015 Year in Review, http://www.wolfpointherald.com/index.php/wp-news/local-news/5148-

2015-year-in-review (last visited Apr. 25, 2016).

155

See Bill Vander Weele, Lady Wolves Excel in Academics, Basketball, THE WOLF POINT HERALD-NEWS,

http://www.wolfpointherald.com/index.php/wp-sports/5369-lady-wolves-excel-in-academics-basketball (last visited

Apr. 22, 2016).

the most remote and underpopulated areas of the United States, and school sports is the big game

in town. High school basketball is among the main forms of recreation and entertainment. It is

also the medium through which racial discrimination is very commonly visited on Native

youth.

156

Unfortunately, racism against Native high school athletes is not rare in eastern Montana. In

February 2017, for example, a radio host suggested that basketball tournaments should be

racially segregated, writing on his website that “[t]he crowd is so unruly and disrespectful of the

facility that it may be time for the [Montana High School Association] to proceed with an all

Indian tourney.”

157

The same month, an employee at Reed Point High School was accused of

turning Native fans away from a high school basketball game, saying, “We don’t have any

workers yet so we are only letting white people in.”

158

Native students on Fort Peck excel at

basketball and other sports, but face discrimination by coaches and school administration. The

Native students who lead the teams to state and other championship games are not placed on the

first string or are benched so that non-Native players can maintain the spotlight in those

showcase games, where media coverage and recruiters are more likely to pay attention.

Although Native students recognize this discrimination, they are often afraid to speak out for fear

of potential consequences to their futures.

159

b. Coaches in the District use racist and culturally insensitive language.

Despite their reverence for and commitment to school sports, Native student athletes suffer racist

abuse during practice and games. A Wolf Point High School varsity basketball coach repeatedly

harassed Native Student #6 during practice. He mocked the student, who was also a runner, for

lacking a “cross-country face” because she did not look like she was working hard enough.

Native Student #6 and her peers found this astonishing because Native Student #6 worked

exceptionally hard at sports. They found the comment culturally insensitive; Native people have

different ways of demonstrating effort than the exaggerated expressions that can be the norm in

other American cultures. The insult reflected an entrenched stereotype, reinforced over decades

of racism in the community and its schools, of lazy Native people. Another Wolf Point High

School basketball coach curses at her players and is harsher with Native students than non-

156

See infra Section III(B); see also Healey, supra note 32, at 701–03. Coaches also use discipline to remove

Native players from starting lineups. A student at Wolf Point High School came home devastated after her coach

informed her in front of all of her teammates “she was failing math and would be ineligible to play.” Id. at 703.

These situations have dire consequences. In the instance described, the student attempted suicide once she was

kicked off of the team. Id.

Another student committed suicide after being suspended from all activities for sixty

days and not being able to participate in his athletic competitions. Id. at 702. Native students hold basketball and

other sports up as a vital part of their lives. When the school denies them access to basketball, these young people

can be demoralized. Id. at 701.

157

Matt Hudson, Tempers flare over deleted Cat Country post calling for separate Native tourneys, BILLINGS

GAZETTE (Feb. 22, 2017), http://billingsgazette.com/news/local/tempers-flare-over-deleted-cat-country-post-calling-

for-separate/article_c4dd1511-f71c-500c-948e-

fe5d0b8e07fb.html?utm_medium=social&utm_source=email&utm_campaign=user-share.

158

Ed Kemmick, Reed Point Superintendent Backs Worker Accused of Bias, LAST BEST NEWS (Feb. 16, 2017),

http://lastbestnews.com/site/2017/02/reed-point-superintendent-backs-worker-accused-of-bias/.

159

See Section III(D)(3)(c) for discussion how student-athletes in the District are removed from teams as a

consequence of speaking up against racism, resulting in the loss of college scholarships and other critical

opportunities. Native students have resigned themselves to silence in the face of discrimination from their coaches.

Natives. One coach has used overt racial slurs such as “rez kids,” “prairie Indians,” and “dirty

Indians” during practice.

A former head girls’ basketball coach at Wolf Point High School made his team watch videos of

past teams playing. He lectured that the past teams, which were all white, were better than the

current team because they had family support and the team members’ families were not drunk all

the time. His comment belittled his Native players by his reference to their community’s

struggles with alcohol and substance abuse. He said that his team did not play “rez ball,”

disdaining the style of basketball enjoyed by Native people outside of school. He performed

“war whoops,” putting his hand over his mouth and hollering in a deeply offensive mockery of

Native culture. He ridiculed his Native athletes, teasing that they were doing “old Indian tricks.”

Once, when music that he did not like was playing, he demanded that it be turned off, saying that

he would “sooner listen to powwow music.” The Native students did not laugh at these jokes.

The less the Natives students responded positively to him, the more poorly he treated them. He

began to inflict regular emotional abuse upon one of his star players, Native Student #7, who

tired of being polite during his racist rants. He labelled her the “cancer of the team” in an effort

to discourage and humiliate her.

Racial discrimination and harassment in the District also take the form of prejudice against

particular Native families because their names are associated by school officials with a familial

history of crime or violence. Students with these notorious surnames are stigmatized. Teachers

and administrators are intolerant of students’ digressions because of who their parents are.

160

During the 2012–13 basketball season, Wolf Point High School’s head girls’ basketball coach

attempted to throw a basketball at Native Student #7, the team’s top player. The ball did not

make contact, but the coach warned her that he would not miss the next time. One week later, he

succeeded, striking her with a basketball from behind. She and her family were distressed that

her relationship with the coach had thus deteriorated. Native Student #7 felt constantly berated

and harassed; she would cry at the thought of basketball and needed years of therapy and

counseling before she regained her strength. Her father complained about the coach throwing

the basketball at his daughter to the superintendent of the District; another coach wrote to him

saying that she and her colleague “battled our emotions knowing that we cant [sic] judge [Native

Student #7] by her father,” revealing the coaches’ prejudices and disinclinations toward certain

students based on their families.

c. Wolf Point schools’ sports programs discipline Native students more

frequently and harshly than white students.

160

See, e.g. Interview by Rebecca Gerome with Native Community Member #4 in Wolf Point, Mont. (Sept. 29, 2015).

L___ is a bad name. I’m glad I carry the B___ name. L___ is a bad name only because of a young girl who

was on meth so bad that she would take her two kids and go to houses and use them saying she needed

diapers, milk, and a place to live. She went into one house and stole this lady’s debit card. I don’t know how

she did it but she cracked the pin and got 28,000 dollars off the credit card and had her picture plastered all

over. There’s bad names. It’s sad. It hurts my heart.

See, e.g. Interview by Rebecca Gerome with Native Community Member #3 in Wolf Point, Mont. (Sept. 29, 2015)

(“A__ is not a very good name. They have a bad rap. . . . You can tell that A__ is not a white name, it’s not a white

person. It’s a Native American name.”); See, e.g. Interview by Rebecca Gerome with Native Community Member #2

in Poplar, Mont. (Sept. 28, 2015). (“The way discrimination plays a role in school discipline is that it’s according to,

“What family are you from?” Family names play a big role on the reservation.”)

Disparate discipline practices are especially evident in school sports. White students are rarely

punished when they misbehave or commit errors during games while Native students are

punished excessively or expelled from the team for similar behavior. During the 2014–15 Wolf

Point High basketball season, only two Native boys were on the varsity team. The coach rarely

allowed the boys to play and when he did would bench them for a single mistake. He did not

bench white players who made the same or similar mistakes. The coach would not allow Native

Student #20 to play games because of the way he dribbled, but he let white students continue to

play even if they allowed turnovers of possession to the other team. These racially preferential

practices have been reported for decades in the Wolf Point school system.

School staff harass Native students. During track in spring 2015, while travelling for a

competition, Native Student #6 was placed in a motel room with a group of white students who

bullied her and made her sleep on the floor. Native Student #6 reported this to her parents, who

expressed their concern to the coaches. The coaches became angry with Native Student #6,

demanding to know why she had told her parents and announcing that the situation was “none of

[her parents’] business.”

In the fall of 2014, Native Students #8 and #9 were kicked off the Wolf Point High School girls’

basketball team because they had babies and, according to the head coach “needed to take care of

them.” The coach did not claim that their status as parents in any way jeopardized their health

and safety on the court, merely that it was not appropriate for them to participate in sports as

young parents. In contrast, the following school year, 2015–16, one coach’s pregnant niece, a

white student, was permitted to play volleyball and to attend games with the basketball team.

Excluding pregnant or parenting students from extracurricular activities is not a formal school

policy.

161

Exclusion of pregnant and parenting students from school activities is, in itself, illegal

discrimination under federal law.

162

Excluding only Native students on those grounds is a

racially discriminatory abuse of the coaches’ discretion.

The 2015–16 Wolf Point High School girls’ basketball season was particularly difficult for the

Native students. By the season’s close, due to abusive and discriminatory coaching tactics, five

out of the team’s six Native players had either been kicked off of the team or pushed out of Wolf

Point High School altogether.

The coaching staff showed overt racial preferences for white players that year. One coach’s

white niece had quit early in the season and missed approximately five practices. She was let

back onto the team. She was allowed to start a game at district playoffs even though she was a

freshman who had never played a varsity game before.

Meanwhile, the coaches’ abrasive and discriminatory tactics made the Native athletes feel

uncomfortable, unwelcome, and harassed. During one practice, one of the coaches made Native

161

See Wolf Point Junior/Senior High School Extra-Curricular Activities Handbook (2015–2016).

162

Under Title IX, exclusion of pregnant and parenting students from any part of the educational program, including

extracurricular activities, is illegal discrimination. See UNITED STATES DEP’T OF EDUC., DEAR COLLEAGUE LETTER

AND ATTACHMENTS (June 25, 2013), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201306-title-

ix.pdf.

Student #6 run laps, completely unattended, giving no reason. After fifteen to twenty minutes,

the coach had forgotten Native Student #6 was running, and another student had to remind her to

let Native Student #6 rejoin the team. Native Student #6 and her teammates wondered what she

had done to deserve the punishment.

Later in the season, two of the team’s Native students were cast off of the team for expressing

their dismay at the coaching staff’s discrimination. At the start of the season, four Native

students, including Native Student #10, were told they would start on the varsity team that year.

The girls set their hopes high, only to discover after tryouts that they had been bumped to junior

varsity in favor of a group of non-Native players. Native Student #10, who was a sophomore at

the time, did not complain about the change. She believed that if she worked hard and matured

as a player, she would get the recognition she deserved. As the season progressed, she gradually

earned more time in varsity games. But when the team made it to districts in Glasgow, Native

Student #10 did not get to play. With only two weeks left in the season, her coach announced

that it would be best for the team to start an inexperienced white freshman instead of Native

Student #10. Native Student #10 returned home that night sick to her stomach.

Native Student #5 started the 2015–16 season on varsity. She was talented and worked hard to

help the team get to district playoffs. The same coach, however, used harsh coaching tactics on

her that he never used with white players. He got up close to her face to yell at her at every

practice and game and threw his clipboard at her when she made minor mistakes. She began to

have anxiety attacks. Many Tribal community members took note of his publicly abusive

behavior and expressed concern for Native Student #5’s wellbeing.

163

One Tribal Elder, Wilfred

Max Bear, wrote a post on Facebook expressing dismay at this coach’s abusive treatment of the

Native players. He accused the coach of favoritism of white students while “quality” Native

players languished on the bench.

164

Native Students #5 and #10 “liked” and shared the Elder’s

post.

Shortly after “liking” the post, Native Students #5 and #10, along with Native Student #6 (who

had not “liked” or shared the post at all but was friends on Facebook with the other two students)

163

See, e.g. Ruth Jackson, Written Statement (Mar. 4, 2016) (on file with author); Rich McDonald, Written

Statement (Mar., 2016) (on file with author); Anonymous Grandmother, Written Statement (Feb. 16, 2016) (on file

with author); and Arnold Wayne Shawl, Written Statement (Mar. 18, 2016) (on file with author).

164

Wilfred Max Bear, FACEBOOK (Feb. 21, 2016, 8:00 AM) (on file with author) (Max Bear’s full post reads):

The Lady Wolves ended up in 4th place at District 2B. I think that was awesome because they did so under

the tutelage of an abusive coach. A couple of the Lady Wolves are allowed to play unscathed no matter

how many shots they miss, how many turnovers they have commited [sic], and no matter how many other

bad plays they make. On the other hand a few of the ladies are verbally attacked even before they reach the

bench and are verbally abused while on the bench. Some even suffer anxiety attackes [sic] due to the

abusive behavior. This abusive coach was given a technical foul a few games back and he sat down and

behaved himself for awhile but he was up to his bad behavior in no time at all. In my opinion, this abusive

behavior has to stop now. He should be fired and charged with child abuse because these girls are under the

age of 18 years. And another bad move is that he has quality players riding the bench that should be used to

relieve the starters. A strong bench is key to winning and Wolf Point has a strong bench. Every coach has

favorite players and this person makes that really easy to see. I hope the Wolf Point High School

administration is able to see his abusive and detrimental behavior and fires him before he traumatizes the

girls for life.

discovered that they had been expelled from the team Facebook group, which provided essential

information about practices and games. Then the coach, accompanied by the school’s athletic

director, informed Native Students #5 and #10 that they were kicked off of the team because they

were “bad for the program,” labelling their behavior as “conduct unbecoming” under the school

handbook.

165

The officials ignored the part of the handbook that specifies the required

procedures for addressing violations of conduct, including a hearing and appeals process.

166

They

summarily expelled two of the six Native students from varsity basketball that season, and

effectively eliminated a third, Native Student #6, by removing her from the team’s Facebook

page with the critical information on practices, team activities, and schedules. Shortly after, two

of the remaining three Native players left the team and the school, certain that they would never

be treated fairly.

Meanwhile, white students on the team engaged in their own public misbehavior on social

media. Following the Wilfred Max Bear post that the Native players had done no more than

“like,” white teammates posted proposals that they get drunk together at a bar because of what

was happening to the team. One white teammate documented her own drinking on Facebook.

Another white student posted evidence of her gambling in a casino. Unlike the Native students,

they were never disciplined for “conduct unbecoming.”

The same tactics of aggression toward Native players continued into the most recent basketball

season. The High School girls’ basketball coach started the 2016–2017 season by pulling Native

Student #23 out of class for a meeting with five non-Native team members (including three

children of Board members) and himself, without informing Native Student #23 of the purpose.

The coach instructed the five non-Native students to vote on whether or not Native Student #23

should be allowed to stay on the team, resulting in her removal. Native Student #23

subsequently transferred to Poplar High School, where she has been a standout player.

On February 11, 2017, the basketball coach verbally abused and gestured threateningly at Native

players following a critical last minute opportunity to secure a victory in a season-ending game.

As the final buzzer sounded with the game tied, the coach rushed off the bench and menaced

Native Student #5, screaming and swinging his hands over her head. Only when Elders rose

from the stands to protest his abuse of their student did the coach return to the bench. The Elders

have watched the current generation of Native students grow up normalizing abusive and

threatening behavior toward them, with their only options being to leave the District or to stay

silent in the face of abuse.

These teachers, coaches, and administrators punish students of different races differently for the

same conduct. They dole out excessively harsh punishments to Native students for minor

misbehavior while ignoring altogether the more severe misconduct of white students. The

effects of this disparate treatment can be devastating. According to Dr. Michael Uphues, who

practiced medicine on Fort Peck for seventeen years, for many Native students “their only joy in

life and their only way to stand out” is school athletics. When Wolf Point schools discriminate

against Native student athletes, including through excessive discipline for “petty nonsense,” they

165

See Wolf Point Wolves Junior/Senior High School Extra-Curricular Activities Handbook (2015–16).

166

Id.

“take away a sense of purpose.” This leads to diminishment of Native students’ “self-esteem”

and “dreams” for the future. “When you take that away, there’s nothing left.”

167

d. Wolf Point schools’ sports programs favor white students.

Native people are often effectively foreclosed from the most viable route to success in the region

— excellence in varsity athletics. High school basketball is the primary way to receive college

scholarships and school awards in Wolf Point, and these most often go unearned to the children

of local white families because of their relationships with those in power. Although Wolf Point

High School is predominantly Native, its starting lineups are consistently white, dominated by

graduates of Frontier Elementary School and the children of white School Board members and

school employees.

168

Native students are told they are simply not good enough to play or that

giving the white students more playing time is best for the team.

Even star Native athletes, once they have helped advance their teams for the season, are benched

for high-profile games. In 2014, Native Student #7 was frequently sidelined during Wolf Point

basketball games in favor of white students. When she was about to beat the three-pointer record

of a white student from Frontier, the coach pulled her out of the game. When college scouts and

recruiters attend games, coaches systematically replace the Native students who started every

other game of the season with white children of School Board members or school employees.

One Native Wolf Point graduate reports that when she attended Wolf Point, the coach pulled her

out of games when recruiters came so that prominent white families’ children could play. That

coach later wrote her a letter apologizing for this.

Coaches may claim that they favor some players based on talent and effort, not on race or family.

These pretexts are revealed when the students who leave the District’s teams because they are

not played go on to win state championships as key members of their new teams, excelling over

the white players in head-to-head matches. For example, Native Student #11 was not allowed to

play basketball at Wolf Point High School and was told that he would “never” be good enough

for the team. He was so affected that he transferred to the all-Native Frazer School, where he

became a star pupil and a starting player on a team that won state championships. Similarly,

Native Student #12 helped the Wolf Point High School basketball team win the state title in the

spring of his junior year, 2011, but was kicked off of the team his senior year in favor of a white

freshman. When asked about this, the coach responded, “I’m not racist. I’m prejudiced.” Native

Student #12 “wanted to kill himself,” but instead he changed schools, moving to Shepherd,

Montana, where he went on to win the state title again with his new team.

Native student athletes who are not allowed to play on the Wolf Point teams despite talent and

drive are unable to find joy and purpose in school life and they suffer academically. Some feel

forced out and transfer to distant districts with fewer resources, at the expense and inconvenience

of their families, in order to find equal opportunity. Those Native students whose families

cannot provide transportation to another school district, or who are unable to transfer for

economic or family stability reasons, often end up giving up on school altogether. Tribal

167

Telephone Interview by Lucy Kissel with Dr. Michael Uphues (Apr. 24, 2017).

168

Healey, supra note 32, at 705.

community member Bill Whitehead reports that many young people drop out because of the

racism they experience in athletics, when “coaches . . . play their relatives, or sons and daughters

of the people on the School Board. . . . [I]t happens all the time.”

169

e. Wolf Point schools’ sports programs exclude and push out Native students.

Policies in the school sports programs have a disparate, and often intentional, impact on Native

students who come from families without the financial resources of the white families. Wolf

Point High School implemented a “pay to play” policy recently, charging fees for sports

participation on top of the costs of equipment and travel. A similar “arts fee” for art-related

extracurricular activities is in place; participation in band, for example, requires payment with no

waiver option. The school withholds students’ report cards if they do not pay the fee.

Many Native students at Wolf Point schools who are mistreated in athletics and other programs

are, as a consequence, pushed out of the District in search of fair treatment.

170

Even students who

have the support and care of their families feel compelled to leave what is, for many, a toxic

school environment. Native Student #6, an honor roll student, was diagnosed with “situational

anxiety,” a result of intimidation and unfair treatment by her coaches at Wolf Point High School.

She switched to all-Native Frazer, a distant and lower-performing school than Wolf Point, in the

middle of the semester. Despite having fewer resources there, she feels more comfortable in

Frazer’s all-Native student body and has thrived at the school, including receiving Honorable

Mention through her athletic conference. Native Student #7, too, despite her potential in school

athletics, moved out of Wolf Point High School into a different school, disrupting her education

and athletic career. Native Student #10 also fled to the all-Native Poplar High School after she

was kicked off of Wolf Point High School’s basketball team. She reports a huge difference in

the school environment; unlike at Wolf Point, she now feels that her teachers and all her

classmates care about her success and her future.

4. Wolf Point schools favor white students.

While the District’s discipline and treatment of Native students are problematic, so is the scarcity

of programs designed to meet Native students’ needs. The Department of Education allocates

Title VII funding and the Bureau of Indian Education allocates Johnson O’Malley funding in

order to fulfill the federal government’s “responsibility to the Indian people for the education of

Indian children.”

171

Yet the District perpetually mismanages these funds, failing to serve the

students for whom the money was intended and to make good on the government’s

responsibility.

Wolf Point High School’s classrooms are often segregated. As previously discussed, white

students are preferentially placed in advanced track courses.

172

Additionally, within classrooms,

teachers place Native students at one classroom table and non-Natives at another. Teachers and

administrators ignore the Native students and focus on the non-Native students. When Native

169

Interview by Rebecca Gerome with Bill Whitehead in Poplar, Mont. (Sept. 30, 2016).

170

See discussion, infra Section III(D)(c)-(d).

171

Indian, Native Hawaiian, and Alaska Native Education, 20 USCA § 7401 (Dec. 10, 2015).

172

See infra Section III(B)(1).

students perform poorly or act out, teachers or administrators enroll them in the OLC, a

classroom for remedial learning that has become, essentially, a repository for the children the

teachers prefer to avoid. The students in the OLC are almost all Native. As of December 2016,

sixteen of the forty-two students in the senior class were failing.

Cookie Ragland, an OLC teacher, struggles to provide these students with quality remedial

education, but gets little financial or other support from school administration. She has been

ordered to discontinue her outreach involving community members in alternative education

projects and her efforts to develop Native-centered curricula. She is not included in policy

decisions regarding the OLC. Ms. Ragland has been thwarted in her efforts to make learning

relevant to her students by taking them on field trips. A handbook and chain of command

formerly governed the OLC’s leadership, but those protections have disintegrated, permitting

inequities to thrive unchecked with few voices to challenge them. The District’s web of

nepotistic leadership compounds this problem. At one point the OLC was moved into the Wolf

Point Junior High and High School building. The administration required OLC students to enter

its room through a door on the outside of the building, rather than through the school’s main

entrance with the rest of the students, reminding Ms. Ragland of the Jim Crow South, with the

disfavored Native students using a separate “back door” entrance. The school’s neglectful

attitude toward the Native students in the OLC and its departures from procedural norms raises

concerns about how these students are treated and what the District plans for their future.

5. Wolf Point schools retaliate against Native parents who demand equal treatment

for their children.

When Native parents fight for equal opportunity for their children, the District retaliates. Native

Student #6’s mother tried diligently to engage with the head basketball coach and the athletic

director to address their treatment of her daughter. When she went to the school for these

meetings, the head basketball coach cursed at her, and a coach’s wife confronted and harassed

her. Another coach lashed out at her, saying, “Fuck your daughter.” The coaches also harassed

and demeaned Native Student #6 and her family when they advocated for other Native students.

Ultimately, Native Student #6’s mother received a letter from the District banning her from all

Wolf Point school properties.

When her daughter was kicked off of the school basketball team for “liking” Tribal Elder Max

Bear’s Facebook post criticizing the coach’s abuse of Native players,

173

Native Student #10’s

mother came to the High School to pick Native Student #10 up. Native Student #10’s mother

was upset at the injustice, and requested that a police officer come to the scene, so she could

explain that the coaches were abusing their athletes. When a police officer arrived, he informed

Native Student #10’s mother that there was nothing he could do because the abuse occurred at

basketball games outside of Wolf Point and therefore beyond his jurisdiction.

Several days later, a new fake Facebook account posted a picture of the police report describing

the incident, in which the minor Native students involved were identified, their names not

redacted. The posted picture showed a few digits of the fax number to which the report had been

sent, and Native Student #10’s mother traced the numbers to a residence belonging to a Wolf

173

See Section III(D)(2)(c).

Point coach. She suspects that coaches in Wolf Point High School’s sports program posted it to

get back at her for complaining about her daughter’s treatment.

These retaliatory events demonstrate the lengths that the District’s leaders and employees go to

humiliate Native families who ask for equal treatment of their children. They also help explain

why so many Native families remain silent in the face of daily injustice at their children’s

schools.

6. Wolf Point schools violate Native students’ due process rights in discipline.

Under Goss v. Lopez, students receiving a suspension of up to ten days are entitled to notice of

the charges against them and an opportunity to present their version of events prior to their

removal from school.

174

Longer suspensions call for even more formal proceedings.

175

The Wolf

Point District Manual requires the District’s schools to notify parents of a student’s suspension or

expulsion. According to the manual, “All suspension and/or expulsion proceedings will conform

to the requirements of the State. Notification of all such proceedings will be sent to parents or

guardians.”

176

Furthermore, only a building administrator may order a suspension up to ten

days.

177

In violation of these formal protections, Wolf Point schools send students home for days or

weeks at a time without explanation, guardian notification, continued instruction, or a hearing.

In February 2015, fifteen-year-old Native Student #13 was suspended from Wolf Point High

School for three days and was publicly kicked off of the volleyball team because she had

allegedly smoked marijuana. Her family, convinced that the allegations were false, had her take

a drug test, which she passed. Yet the school refused to believe her when she protested her

punishment with proof of its injustice.

In 2014, Native Student #3 was a few days away from his eighth-grade graduation. One of his

friends, who had dropped out of school, was standing on the corner smoking. A teacher saw

Native Student #3 approach his friend. While the teacher acknowledged that Native Student #3

was not smoking, the school expelled him for being in the presence of another student who was

smoking.

Native Student #14 was also suspended from Wolf Point High School for smoking, without any

evidence. Her suspension was based on two other girls’ accusations, but school staff searched

Native Student #14 and her classmates and did not find any cigarettes, and the girls did not smell

of smoke. The school suspended Native Student #14 for three days anyway. The school

informed Native Student #14’s grandmother of the suspension only after it was in place. When

her grandmother called the school to say that Native Student #14 should not have been

174

419 U.S. 565 (1975). If students pose a danger, they may be removed immediately, as long as the necessary

notice and hearing follows. Id. at 582.

175

Id. at 584.

176

WOLF POINT SCH. DIST. POLICIES, SECTION 3 (STUDENTS) § 3300P, 1,

https://issuu.com/montanaschoolboardsassociation/docs/wolf_point_school_district_policy_m?e=16838009/125067

53 (last visited Jan. 26, 2017).

177

Id.

suspended, the school principal hung up on her. Families and students who seek the

explanations and procedures that the law and Wolf Point’s own policies require are brushed off.

7. Wolf Point schools violate the rights of Native students with disabilities.

Under the Individuals with Disabilities Education Act (IDEA), schools must serve the

educational needs of students with disabilities.

178

One of the most important guarantees of IDEA

is a free appropriate public education (FAPE) to every qualified handicapped student.

179

Under

FAPE, schools must place students with disabilities in an environment least restrictive to their

learning process.

180

This includes following an Individualized Education Plan (IEP) developed

and reviewed by a team once a year to measure a student’s progress through annual goals.

181

The

team must complete IEPs annually for students with learning disabilities and attention deficit

hyperactivity disorder.

182

A team of teachers, evaluators, a school system representative, and a

parent collaborate to create and follow the IEP. No changes may be made to the IEP without

prior notice to the parents, the parent must receive a free copy of the IEP, and the school must

receive written consent from the parent before the child is provided any services.

183

Under IDEA,

if a student with a disability misbehaves and the behavior is related to her disability, the school

cannot discipline the student for more than ten days out of the entire school year.

184

Furthermore,

suspensions or expulsions longer than ten days of students with disabilities require a

“manifestation determination” — a review by the school district, parents, and other members of

the student’s IEP team.

185

On the Reservation, students with disabilities are disproportionately

Native,

186

and are not afforded their rights under federal law.

For example, Wolf Point’s Southside Elementary School evaluated Native Student #15 and

diagnosed him with autism. Since then, Native Student #15 has not received regular evaluations,

and he and his family are not invited to regular IEP meetings. In the fall of 2015, a substitute

teacher chased him out of a room he was not supposed to be in, yelling rudely at him. Because

178

See 20 U.S.C. §1415 (2010); see also CENTER FOR PARENT INFO.& RESOURCES, SUBPART F OF THE PART B

REGULATIONS: MONITORING AND ENFORCEMENT, http://www.parentcenterhub.org/repository/partb-

subpartf/#300.604 (last visited Apr. 25, 2016).

179

CATHERINE Y. KIM, DANIEL, J. LOSEN, & DAMON T. HEWITT, THE SCHOOL-TO-PRISON PIPELINE: STRUCTURING

LEGAL REFORM 57 (2010); 42 U.S.C.A. § 12131.

180

KIM, ET AL. supra note 355, at 63 (“The law requires states to ensure that each child with a disability is educated

in the ‘least restrictive environment’ with children who do not have disabilities in the regular classroom to the

‘maximum extent appropriate.’”).

181

Id.

182

See U.S. DEP’T OF EDUC., A Guide to the Individualized Education Program,

http://www2.ed.gov/parents/needs/speced/iepguide/index.html (last visited Jan. 26, 2017); See also

UNDERSTANDINGSPECIALEDUCATION.COM, Understanding IEP Law and Special Education,

http://www.understandingspecialeducation.com/IEP-law.html (last visited Jan. 26, 2017).

183

Id.

184

See U.S. DEP’T OF EDUC., OFF. OF SPECIAL EDUC. PROGRAMS, IDEA REGULATIONS: DISCIPLINE,

http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CTopicalBrief%2C6%2C (last visited Apr. 25, 2016).

185

See KIM, ET AL. supra note 355, at 60.

186

See OCR 2013. In 2013–14, 85.7% of Wolf Point High School’s IDEA students were Native or “Two or More

Races,” 100% of Wolf Point middle school’s IDEA students were Native or “Two or More Races,” 100% of Frazer

middle school’s IDEA students were Native, 81% of Northside Elementary Schools’ IDEA students were Native,

93.3% of Southside Elementary School’s IDEA students were Native, and 100% of both Frazer and Frontier

elementary schools’ IDEA students were Native.

of Native Student #15’s autism, the encounter disoriented him; he sat in the back of the class

afterward and would not speak. After the incident, he refused to return to school. Only on his

third day of absence did the school call his family members to locate him. His grandmother tried

to walk him to school, but ultimately she removed him from school completely because he

exceeded the ten-day limit on absences. Social services removed Native Student #15 from her

care because of his truancy.

Native Student #15 is now in

fourth grade at Northside, and is still learning how to talk. He

frequently appears to disconnect from his surroundings and retreat into his own thoughts. He

receives good grades on his homework, but his grandmother does not believe he understands the

work; she thinks the school is passing him through the system even though he is not receiving

the education he needs. The school provided him with a “resource room,” where they warehouse

troublesome students, but no other services. Native Student #15’s teacher is not a special

education teacher. The school explained to his mother that it lacks funding for the special

education resources Native Student #15 requires.

Wolf Point schools violate students with disabilities’ protections from disciplinary exclusions.

The District does not consider whether students’ misbehavior may be related to their disabilities,

denying them the due process IDEA guarantees. For example, Native Student #16 has been

disciplined for behaviors that are a result of his medical problems for his entire educational

career in the District. In 2013, while at Southside Elementary School, Native Student #16 ran

into a non-Native child on the monkey bars. The school told his grandmother that he caused too

much trouble on the playground and needed to go home. The school did not send the other child

home; it blamed Native Student #16 for the incident and suspended him for three days. When he

returned from his three-day suspension, the school principal told him that he would be suspended

for the rest of the year if he misbehaved again. One day in physical education, Native Student

#16 threw a ball and accidentally hit a classmate. The school kept its promise and suspended

him for the year. He then enrolled in fourth grade at Northside Elementary School. While

playing basketball there one day, he again threw a ball that hit a classmate. The principal came

to the scene and did not believe that Native Student #16’s pass was an accident. She told him

that he was lying, so Native Student #16, upset, threw the ball again, hitting the principal and

leaving a mark on her from her necklace. The principal filed a complaint against Native Student

#16, and the School Board did not allow his grandmother to defend him. It placed Native

Student #16 on probation for ninety days.

When Native Student #16 finally returned to school, his grandmother gave him a stress ball to

use to help calm him down in upsetting situations. One day in class, he squeezed the ball, and

his teacher sent him to the principal’s office for it, claiming that he was not paying attention.

The principal sent Native Student #16 home and did not allow him back for three weeks —

without discussing the decision with his guardians. Continually, the schools disciplined him

without notifying his grandmother. He would be sent home alone or with a police officer.

Had Native Student #16 been treated properly as a student with disabilities, his family might

have worked with the school to establish an effective learning environment. Instead, he was

suspended for most of the fourth grade. The District advanced him to fifth grade anyway.

Constant discipline prevents Native Student #16 from learning the necessary material to progress

and the school provides no way for him to make up for this critical lost education. The school

fails to even provide paperwork related to his disability.

Violations of the rights Native youth with disabilities affect students of all ages on the

Reservation. Native Student #25, a student at the Northside School, was suspended four times in

two months this semester. Native Student #25 had been diagnosed with ADHD and a traumatic

brain injury. However, the school refused to create a 504 Plan

187

for him and continually

suspended him — once doing so in front of other students — without affording him the

protections that students with disabilities are entitled to.

At Frontier Elementary School,

188

five-year-old special needs Native Student #18 did not receive

the care to which he was entitled. His kindergarten teacher told his mother that he was behind

and not “smart enough” to catch up or excel. Yet the teacher responded by simply sending him

to a special education setting once or twice a week for up to fifteen minutes. Instead of regularly

providing him much-needed time outside of the regular classroom, she expected his parents to

volunteer at the school to keep an eye on him.

Native Student #18’s mother worries about her son’s education as well as troubling stories of his

physical and sexual abuse at the school. Native Student #18 told her one day that a boy at school

was touching him. When she relayed this information to his teacher, the teacher responded that

she would make sure the children no longer used the bathroom together, but she did not speak to

Native Student #18’s abusive non-Native classmate. Native Student #18’s mother is sure that if

the roles had been reversed, the teacher would have involved social services to resolve the

situation. Native Student #18’s other classmates hit and bit him; his teacher excused this

behavior because, according to her, Native Student #18 should behave differently and learn to

speak so that he can express to adults that he is being abused. His mother attributes the behavior

of the school and students in part to prejudice against his Native appearance.

The District violates federal rules governing the education of children with disabilities and

disciplines students with disabilities without considering their needs.

IV. STATEMENT OF JURISDICTION

Fort Peck Indian Reservation schools are recipients of federal funding and therefore subject to

the anti-discrimination prohibitions of Title VI of the Civil Rights Act of 1964, Title II of the

Americans with Disabilities Act, and Section 504 of the Rehabilitation Act of 1973.

Complainants allege that the discriminatory acts complained of occurred within 180 days of the

filing of this Complaint or are ongoing.

187

Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against public school students with

disabilities, including students with learning and attention issues. Schools must engage parents in creating a

student’s 504 plan, which sets out the actions the school will take to ensure that the student makes educational

progress.

188

While Frontier is a separate school district, it is a feeder elementary school for the Wolf Point School District.

See infra Section II(D)(3).

V. CONCLUSION

The Reservation’s discriminatory treatment as well as its breach of disciplinary due process has

resulted in exclusion of Native students from a fair and equal public school education. The

actions of on-Reservation school district staff and administrators obstruct Native students’ access

to a safe learning environment. There is an urgent need for the Departments to review

complainants’ allegations of racial discrimination and violations of Title VI of the Civil Rights

Act of 1964, Title II of the American with Disabilities Act, and Section 504 of the Rehabilitation

Act of 1973. We ask that the Departments work with the Tribal community, the Fort Peck Tribal

Executive Board, and the District to remedy these violations and to move forward to deliver an

equal education to Native students, providing them with the learning and the respect to which

they are entitled and of which they have long been deprived.

Photo credit: www.thomasleetruewest.com