State of Missouri ex rel. L.O., as Next Friend and Biological Mother of L.D. v. The Honorable W. Ann Hansbrough, Circuit Judge, Circuit Court of Platte County, Missouri

           IN THE MISSOURI COURT OF APPEALS
                   WESTERN DISTRICT
STATE OF MISSOURI ex rel. L.O.,              )
as Next Friend and Biological Mother         )
of L.D.,                                     )
                                             )
                                 Relator,    )
                                             )    WD86712
v.                                           )
                                             )    OPINION FILED:
                                             )    December 19, 2023
THE HONORABLE W. ANN                         )
HANSBROUGH, CIRCUIT JUDGE,                   )
CIRCUIT COURT OF PLATTE                      )
COUNTY, MISSOURI,                            )
                                             )
                            Respondent.      )

           ORIGINAL PROCEEDING IN PROHIBITION AND MANDAMUS

            Before Writ Division: Lisa White Hardwick, Presiding Judge, and
                   Mark D. Pfeiffer and W. Douglas Thomson, Judges

       The case before us stems from allegations that Relator, a minor African-American

female student 1 at Platte County High School (“the High School”), was subject to race-

based, student-on-student discrimination and, pursuant to the Missouri Human Rights Act


       1
          The next friend and biological mother of the minor student is formally
designated as the Relator in this proceeding. However, for purposes of this opinion, we
refer to the minor student who is alleged to have been racially harassed as the Relator for
ease of communication while still maintaining the confidentiality of the minor’s name.
(“MHRA”), has pursued a public accommodation claim against Platte County School

District R-3 (“the District”). Because separate incidents of nooses being hung on the

District’s school premises that bracketed the targeted incident involving Relator—in

which disturbing and offensive phrases such as “Configure your nigger” and “Install your

nigger” were directed at Relator—are clearly relevant to Relator’s burden of proving her

accommodation claim against the District, Respondent’s refusal to permit discovery on

these noose incidents is such a clear abuse of discretion that we must order the

extraordinary relief requested by Relator in this writ proceeding.

                             Factual and Procedural History

       On November 13, 2023, Relator filed a Petition for Writ of Prohibition or

Mandamus with this Court seeking preliminary and permanent relief directing that certain

rulings issued by The Honorable W. Ann Hansbrough (“Respondent”), a judge sitting in

the Circuit Court of Platte County, Missouri (“trial court”), be vacated and that the trial

court be directed to compel discovery on matters reasonably calculated to lead to the

discovery of admissible evidence. Respondent’s rulings in question relate to stricken

allegations and denial of discovery.

       On November 28, 2023, we issued a Preliminary Order of Prohibition and

Mandamus (“Preliminary Order”) denying Relator’s writ relief as it related to

Respondent’s ruling on stricken allegations, granting preliminary relief on Relator’s

request as it related to Respondent’s ruling on certain discovery requests seeking

information about nooses hung in the High School, and ordering Respondent to file an

Answer to Relator’s Petition for Writ of Prohibition or Mandamus. Respondent has since


                                              2
filed an Answer which we have considered in issuing today’s ruling. The full relevant

background and procedural history follows. We now make our Preliminary Order of

Prohibition and Mandamus permanent with specific instructions as to discovery

Respondent is directed to compel in the underlying litigation below.

                         Background and Procedural History

      A. MCHR Charge

      On January 10, 2020, Relator filed a Charge of Discrimination (“Charge”) with the

Missouri Commission on Human Rights (“MCHR”) against the District. The Charge

alleged Relator “and other African-American students have been subjected to ongoing

severe and pervasive harassment and discrimination based on race.” In the Charge,

Relator checked boxes indicating discrimination based on race, color, and denial of

public accommodation.

      The Charge detailed three separate incidents of discrimination including

allegations that (1) during the 2017-2018 school year, 10-15 nooses were found hanging

in the boys’ bathroom of the High School; (2) on or about November 7, 2019, a middle-

school student accessed the District’s server and shared a Google document with every

student in the District espousing neo-Nazi propaganda, including “outrageous, hateful,

inappropriate, and hurtful racial slurs and statements” under the headings “Configure

your nigger,” “Feed your nigger, “Entertain your nigger,” “Install your nigger,” and

“Make your nigger work”; and (3) on or about December 4, 2019, another noose was

discovered in the boys’ bathroom of the High School.




                                            3
       The Charge also detailed the District’s response, or lack thereof, to these incidents.

Specifically, the Charge alleged that in response to the November 7, 2019 email incident

(“racial email incident”), the District disabled access to the shared Google document and

“reminded students as well as parents and staff about the District’s technology usage.”

According to the Charge, “[n]o apology was issued at the time to any of the African-

American students or their parents” and the middle-school student responsible received

insignificant punishment. Following the racial email incident, Relator’s mother contacted

the High School and, when unable to speak with the principal, Relator’s mother informed

the assistant principal that Relator was having nightmares. In response, “no counseling

or other help was offered until December 5, 2019.” And even after December 5, 2019,

the Charge alleged the District only provided listings of third-party services without

providing any services through the High School or the District.

       The final paragraphs of the Charge stated:

       Through the above actions of its employees and/or agents and/or third
       parties, the High School and the District, directly or indirectly, refused,
       withheld, and/or denied [Relator], and/or attempted to refuse, withhold
       from or deny [Relator] the accommodations, advantages, facilities, services,
       and/or privileges made available in this place of public accommodation.
       Additionally, or alternatively, [Relator] was segregated and/or
       discriminated against in the use of this public accommodation on the
       grounds of race and/or color, in violation of the Missouri Human Rights
       Act.

       As a result of the unlawful conduct of the High School and the District
       and/or their employees and /or agents and/or third parties, [Relator] suffers
       and will continue to suffer emotional distress.




                                             4
       The District submitted a position statement to the MCHR in answer to Relator’s

charge in which the District denied all of Relator’s allegations of inaction and asserted

that nooses found in the boys’ bathroom “were not racially motivated.”

       B. Right to Sue

       On January 12, 2021, the MCHR issued Relator a Notice of Right to Sue on the

racial email incident, but denied Relator a right to sue on the incidents involving

allegations of nooses being hung in the boys’ bathroom (“noose incidents”). Per the

MCHR decision, Relator was denied a right to sue on the earlier of the two noose

incidents because the Charge “was not filed within 180 days of the alleged discrimination

as required by the Missouri Human Rights Act.” As for the December 4, 2019 noose

incident, the MCHR concluded Relator lacked standing to sue for that incident.

       C. Petition and Motion to Strike

       Relator, by and through her mother, timely filed a Petition for Damages

(“Petition”) in the trial court. The Petition named the District as the sole defendant and

asserted one count of public accommodation discrimination in violation of the MHRA.

The Petition detailed the incidents of student-on-student discrimination outlined in the

Charge—including the racial email incident directly targeting Relator as well as the

noose incidents bookending the racial email incident. As relevant here, paragraphs 14,

15, and 24 of the Petition contained allegations about the noose incidents as follows:

       (14)      Even before [Relator] started at [High School], sometime during
                 the school year of 2018-2019, between 10 and 15 nooses were
                 found in the boys’ bathroom at [High School;]




                                             5
       (15)        Upon information and belief, nothing was done to address these
                   incidents; [and]

       ....

       (24)        On or about December 4, 2019, another noose was found in the
                   boys’ bathroom at [High School]. As a result of these incidents,
                   and the general discriminatory environment at [High School],
                   [Relator] did not feel safe at school and started experiencing
                   nightmares and other emotional distress.

       On June 7, 2021, the District filed a Motion to Strike the above-stated allegations.

Relator opposed, and after briefing concluded, Respondent issued an order on March 18,

2022, granting District’s Motion to Strike. Respondent further ordered Relator to file an

amended petition. Relator complied by filing a First Amended Petition for Damages

(“Amended Petition”) on March 18, 2022, that contained no allegations relating to the

noose incidents.

       D. Interrogatories Regarding Noose Incidents (Nos. 1-3, 7-10, and 14)

       Following the filing of her Amended Petition, Relator served First Interrogatories

(“Interrogatories”) on the District on July 28, 2022. Though allegations related to the

noose incidents were eliminated in the Amended Petition, the Interrogatories sought

information about the noose incidents, including the manner and date the District came to

know about the noose incidents (Interrogatories 1 and 7); identification of persons

involved in any investigation conducted by the District into the noose incidents and their

role in the investigation (Interrogatories 2 and 8); and all witnesses interviewed by the

District as part of any investigation regarding the noose incidents (Interrogatories 3 and

9).



                                             6
       Relator also posed Interrogatories requesting information about all persons who

consulted or participated in disciplinary actions of students involved in the noose

incidents and the racial email incident (Interrogatory 10), as well as “all complaints of

race discrimination or harassment, whether verbal or in writing, received by Defendant

with respect to the student perpetrators” involved in the noose incidents and the racial

email incident (Interrogatory 14).

       The District responded to Relator’s Interrogatories on August 30, 2022. In so

doing, the District asserted a summary objection to Interrogatories 1-3, 7-10, and 14.

That summary objection stated:

              Interrogatories concerning noose incidents stricken by the Court on
              March 18, 2022. (Interrogatories 1, 2, 3, 7, 8, 9, 10, and 14)

              Objection – these interrogatories are not relevant. At issue is a
       single incident occurring “on or about November 7, 2019,” as alleged in
       ¶¶’s 14-17 in Plaintiff’s [Petition]. The above identified interrogatories
       seek information about alleged occurrences occurring on entirely separate
       dates and wholly unrelated to (1) the subject incident, (2) Plaintiff, and (3)
       the single count alleged in the Petition. As such, no information gathered
       by these interrogatories will lead to factual information relevant to a claim
       or defense for the parties.

              Objection – these interrogatories seek information about alleged
       occurrences specifically stricken by the Court in its March 18, 2022 Order.

              Objection – these interrogatories seek information about alleged
       occurrences for which the Missouri Commission on Human Rights
       (“MCHR”) specifically found that (1) Plaintiff had no standing to pursue,
       (2) were untimely filed, and (3) it specifically denied issuing a Right to Sue
       concerning.

             Objection – these interrogatories seek personally identifiable
       information protected under the Family Education Rights and Privacy Act
       (“FERPA”).



                                              7
       E. RFPs Regarding Noose Incidents (Nos. 10-21, 36-47, 54-58, and 60)

       Relator also served her First Request for Production of Documents (“RFPs”) on

the District on July 28, 2022. The RFPs sought documentation relating to the noose

incidents, including documents and evidence relating to any investigation of the noose

incidents conducted by the District (RFPs 10, 36); copies of written statements supplied

by witnesses relating to any investigation conducted by the District into the noose

incidents (RFPs 11, 38); documents evidencing any action taken, or discipline imposed,

by the District relating to the noose incidents (RFPs 12, 20, 39); correspondence, notes,

recordings, and memoranda shared between the District’s personnel related to the noose

incidents (RFPs 13, 14, 41, 42); notes, recordings or memoranda between the District’s

personnel and student perpetrators involved in the noose incidents (RFPs 15, 43);

correspondence between the District and Relator’s mother relating to the December 4,

2019 noose incident (RFP 40); complaints received by the District from the District’s

students or their parents with respect to the noose incidents and documents referencing

the same (RFPs 16, 37, 54, 55); documents memorializing the District’s conclusions and

credibility determinations resulting from any investigation conducted (RFPs 17, 44);

documents referencing any reports by the District to law enforcement authorities and any

ensuing reports prepared by law enforcement authorities (RFPs 18, 19, 45, 46).

       Relator’s RFPs also sought redacted (in consideration of FERPA issues) academic

records of perpetrators found to be involved in the noose incidents as they relate to

complaints and disciplinary actions imposed on said perpetrators during their enrollment

in the District (RFPs 21, 47); redacted copies of documents or correspondence exchanged


                                             8
with parents of alleged perpetrators “relating to behavioral issues and/or inappropriate

conduct” (RFP 56); copies of any photographs or documentary evidence of the noose

incidents (RFPs 57, 58); and any documents relied on by the District for its asserted

position to the MCHR that the “noose incidents were not racially motivated” (RFP 60).

       The District re-asserted the same summary objection in response to the RFPs

relating to the noose incidents as it did in response to the Interrogatories relating to the

noose incidents.

       F. Ongoing Discovery Issues

       After additional efforts to informally resolve the discovery disputes with the

District failed, Relator filed a motion to enforce discovery (“Discovery Motion”) on

April 6, 2023. The Discovery Motion sought an order from Respondent compelling the

District to provide full and complete answers to interrogatories and responses to

document productions relating to the noose incidents. 2

       The District filed suggestions in opposition to the Discovery Motion in which it

argued discovery on the noose incidents was “wholly unrelated and not relevant” to

Relator’s public accommodation claim because (1) Relator’s allegations relating to the

noose incidents were stricken by Respondent; and (2) Relator did not witness either

incident firsthand because she enrolled in the High School after the first noose incident

and only learned of the second noose incident via social media.


       2
         The Discovery Motion sought to compel additional discovery unrelated to the
Interrogatories and RFPs seeking information of documentation related to the noose
incidents, but we have limited our discussion to the Interrogatories and RFPs that relate
to the noose incidents.

                                               9
      Along with the Discovery Motion, Relator also filed a Motion for Reconsideration

asking Respondent to reconsider her March 18, 2022 ruling granting the District’s

Motion to Strike. After briefing concluded, Respondent heard oral arguments on

Relator’s Discovery Motion and Motion for Reconsideration. During those oral

arguments, Respondent clarified her stance on discovery relating to the noose incidents:

             Okay. Well, let me just go ahead and—and tell you now, I find the
      noose is irrelevant. No information regarding the nooses is going to be
      disclosed. . . . And so, with regard to [Interrogatory] Number 14, if we are
      ruling on relevancy, I am going to rule that [Interrogatory] Number 14 need
      not be produced because anything regarding the nooses—and we’ll go
      through each of these and make sure we’re in—in compliance and in—
      consistent—does not have to be produced.

(Emphasis added.) Respondent further stated:

              Okay. Now, the next set that I see is sets 1, 2, 3, 7, 8, 9, and 10 with
      regard to information about the nooses in the boys’ bathroom. And with
      regard to those, I—I do find that—based upon the determination by the
      Missouri Human Rights Commission and the distinctions that I see between
      this case and the cases that have been cited by the plaintiff—that that—
      those are all not relevant to this case and need—so Interrogatories Numbers
      1, 2, 3, 7, 8, 9, and 10 need not be responded to.

As for the RFPs, Respondent explained:

             Request for productions, Numbers 10 through 21, 36 through 47, 54,
      55, 57, 58, and 60. All seek documents related to—the two incidents with
      regard to the nooses; is that correct?

      ....

              If that is what’s requested, again, I keep the same stance, that I think
      that those were excluded. I interpret the—the cases that have been cited by
      the plaintiff for that information to be disclosed differently. And I find
      there’re [sic] distinctions between those cases and the case at bar. And
      since those were not a part of the Right to Sue letters, I’m going to direct
      that those requests for production of documents just referenced need not be
      produced.


                                             10
       On October 3, 2023, Respondent issued a ruling regarding the Discovery Motion.

Respondent denied Relator’s requests with respect to Interrogatories 1-3 and 7-10, and

RFPs 10-21, 36-47, 54-58, and 60. Respondent granted Relator’s request with respect to

Interrogatory 14 “but only to the extent that these Interrogatories seek information about

the [racial email incident].” Effectively, Respondent denied Relator any discovery on the

noose incidents.

       G. Writ to Our Court

       Relator’s Petition for Writ of Mandamus or Prohibition seeks relief from (1)

Respondent’s March 18, 2022 ruling striking allegations related to the noose incidents

(¶¶ 14, 15, and 24 of Relator’s Petition); and (2) Respondent’s October 3, 2023 order

denying Relator any discovery on the noose incidents followed.

       As noted above, we issued a Preliminary Order on November 28, 2023 denying

Relator writ relief on Respondent’s March 18, 2022 ruling. However, we ordered that

Respondent vacate her order dated October 3, 2023 denying Relator discovery on

Interrogatories 1-3, 7-10, and 14 and RFPs 10-21, 36-47, 54-58, and 60, and take no

further action concerning such discovery until further order of this Court. For reasons

explained below, we now make the rulings contained in our Preliminary Order permanent

and supply additional relief as further discussed herein.

                                          Analysis

       Trial courts have broad discretion in administering rules of discovery and an

appellate court will not disturb such discretion by the trial court absent an abuse of

discretion. State ex rel. Delmar Gardens N. Operating, LLC v. Gaertner, 

 (Mo. banc 2007). “Mandamus is proper, however, when a court abuses its

discretion in denying” discovery on matters which are relevant and reasonably calculated

to lead to the discovery of admissible evidence. State ex rel. BNSF Ry. Co. v. Neill, 

 (Mo. banc 2011). “It is not grounds for objection that the information

[sought in discovery] may be inadmissible at trial, but it is sufficient if the information

sought appears reasonably calculated to lead to the discovery of admissible evidence.”

State ex rel. Plank v. Koehr, 

 (Mo. banc 1992).

       Respondent’s refusal to permit discovery on the topic of separate incidents of

nooses being hung on the District’s school premises both before and after the subject

incident of heinous racial slurs directed at Relator in the racial email incident is plainly an

abuse of discretion.

       This Court has previously provided guidance on public accommodation claims

against school districts in which student-on-student harassment is the triggering event.

Doe by & through Subia v. Kansas City, Mo. Sch. Dist., 

 (Mo. App. W.D.

2012). In Subia, the facts centered on sexual harassment instead of race-based

harassment, but we described the elements for a MHRA public accommodation claim

against the school district for harassment involving a protected class as: (1) the plaintiff

is a member of a protected group (race, color, religion, national origin, sex, ancestry, or

disability); (2) the plaintiff was subjected to unwelcome harassment; (3) the plaintiff’s

protected class [race] was a motivating factor in the harassment; (4) the harassment

refused, withheld from, or denied, or attempted to refuse, withhold from, or deny the

plaintiff of the accommodations, advantages, facilities, services, or privileges made


                                              12
available in the public school, or segregated or discriminated against the plaintiff in the

use thereof on the grounds of [race]; and (5) the public school district knew or should

have known of the harassment and failed to take prompt and effective remedial action.

. 3

       “Thus, a student . . . may prevail on a [MHRA accommodation] claim against a

school district . . . if the student proves that [the school district], directly or indirectly,

discriminated against him in his use of the public school system on the grounds of race.”

M.N. by & through S.N. v. N. Kansas City Sch. Dist., 

, 792 (Mo. App.

W.D. 2020). And, “[c]ompensatory damages for violations of section 213.065 may be

awarded for humiliation and emotional distress.” 

 at 792 n.6 (citing Mo. Comm’n on

Hum. Rts. v. Red Dragon Rest., Inc., 

 (Mo. App. W.D. 1999)).

       Importantly, as Subia declares, school accommodation claims based on

harassment borrow from employment hostile work environment case law, to-wit:

       [T]he School District and the Association argue the “knew or should have
       known” standard makes sense only in the employment context due to the
       control employers assert over their employees—control they claim school
       districts do not have over their students. We disagree. As the Court noted
       in Davis v. Monroe Cnty. Bd. of Educ., 

 (1999), “the ability to
       control and influence behavior exists to an even greater extent in the
       classroom than in the workplace.” 

 (citation omitted). Indeed,
       “the nature of [the State’s] power [over public schoolchildren] is custodial
       and tutelary, permitting a degree of supervision and control that could not



       3
         The reason this Court denied Relator’s Petition seeking relief as to the Motion to
Strike ruling is because Relator’s Amended Petition sufficiently states a cause of action
for a Missouri Human Rights Act (“MHRA”) public accommodation claim against the
District without the necessity of any of the allegations that were stricken by Respondent
from Relator’s original pleading.

                                                13
       be exercised over free adults.” 

 (quoting Vernonia Sch. Dist. 47J v.
       Acton, 

 (1995)).

Subia, 

. And, we further clarified:

       [W]e do not believe that students in the classroom are entitled to less
       protection from unlawful discrimination and sexual harassment than their
       adult counterparts in the workplace. The standard for a public school
       district’s liability for student-on-student sexual harassment under the
       MHRA should be the same as that for an employer’s liability for co-worker
       sexual harassment under the MHRA: the school district can be held liable
       if it knew or should have known of the harassment and failed to take
       prompt and effective remedial action.

 (emphasis added) (citation omitted). And, of equal importance, Missouri courts have

also looked to federal discrimination case precedent for persuasive authority to the extent

such precedent is consistent with Missouri law in the MHRA context. Cox v. Kansas

City Chiefs Football Club, Inc., 

 (Mo. banc 2015).

       Here, both before and very shortly after the racially motivated email incident

targeting Relator (among others), a young African-American student attending public

school in the District, in which inter alia hateful language about “configur[ing] your

nigger” and “install[ing] your nigger” was directed at Relator, nooses were found

hanging on school premises.

       While it has been suggested by the District, without reference to any evidence

whatsoever, that the noose incidents were not racially motivated or designed to show a

“configuration” or “installation” that all too often became the demise for African-

American victims of lynching in this country’s history, many courts have affirmatively

and conversely “found that even limited display of a noose can quickly precipitate a

hostile work environment.” Smith v. Town of Hempstead Dep’t of Sanitation Sanitary


                                            14
Dist. No. 2, 

 (E.D.N.Y. 2011) (collecting federal hostile work

environment cases). This is because “[t]he noose is a visceral symbol of deaths of

thousands of African-Americans at the hand of lynch mobs.” Porter v. Erie Foods Int’l,

Inc., 

 (7th Cir. 2009) (citing Williams v. N.Y. City Hous. Auth., 

 (S.D.N.Y. 2001)); Tademy v. Union Pac. Corp., 

(10th Cir. 2008) (“The effect of such violence on the psyche of African-Americans

cannot be exaggerated. Sociologists have explained that lynching was employed to

maintain dominance [over African-Americans] ”) (quoting Williams, 

) (internal quotation marks omitted).

        The point, here, is that we have no idea what the evidence is relating to the noose

incidents on the District’s school premises—whether those noose incidents were racially

motivated or not—because discovery has not been permitted on the noose incidents—

even where those noose incidents and the District’s investigation, action, or inaction, may

very well shed light on the topic of whether the District “knew or should have known” of

a racially discriminatory environment at its schools and for its students—evidence which

is directly relevant to Relator’s burden of proving her accommodation claim against the

District. 4


        4
         In somewhat of a Freudian slip, the District has objected to any suggestion that
the noose incidents are “background evidence” and has instead argued that the topic of
the noose incidents bears upon the Relator’s allegations “to establish the key elements of
Relator’s single claim under the MHRA . . . that the District knew or should have known
about racial discrimination, and that it failed to take prompt and effective remedial
action.” Resp’t Suggestions in Opp’n to Relator’s Pet. For Writ, at 9. To state District’s
argument is to recognize why the evidence sought regarding the noose incidents bears
directly on Relator’s ability to attempt to meet her burden of proof in this subject MHRA

                                             15
       The District (and Respondent) also seize upon the procedural circumstance that

the MCHR refused to grant a “right to sue” letter to Relator on the noose incidents that

occurred both before and after the racial harassment directed at her via the racial email

incident. The MCHR ruled that the “before” noose incidents were barred by the statute

of limitations and the “after” noose incidents were barred by the doctrine of standing.

However, there is absolutely nothing in the MCHR rulings in any way suggesting that

evidence of the noose incidents was irrelevant to Relator’s race-based accommodation

claim against the District.

       Further, “[q]uestions of law are not committed to the discretion of administrative

agencies, nor dependent on their expertise, but are questions ‘for the courts ultimately to

resolve on judicial review when called upon to do so.’” Sultany Trucking, LLC v. Mo.

Clean Water Comm’n, 

, 782 (Mo. App. W.D. 2023) (internal quotation

marks omitted) (quoting Ferry v. Bd. of Educ. of Jefferson City Pub. Sch. Dist., 

, 207 (Mo. banc 2022)). In other words, questions of law relating to legal

relevance of discovery in a MHRA lawsuit are not for administrative agencies to resolve.

Any attempt by the District or Respondent to convert the MCHR rulings relating to

Relator’s Charge into a legal basis for denying discovery in a Missouri courtroom is

fraught with foundational error.

       Likewise, Missouri courts have never held that plaintiffs who sue under the

MHRA are limited only to presenting evidence of the events which the MCHR provided


claim and leads to the obvious conclusion that discovery on these noose incidents is
“reasonably calculated to the discovery of admissible evidence.”

                                             16
a right-to-sue letter for, which is why the District and Respondent cite no precedent

supporting their position to that effect. To the contrary, evidence of events determined to

be unactionable for timeliness reasons may, for example, be relevant as background

evidence for an actionable claim. McKinney v. City of Kansas City, 

(Mo. App. W.D. 2019).

       And, while McKinney may have involved background evidence of other incidents

specifically targeting the same MHRA plaintiff, the Missouri Supreme Court has also

directed that other incidents having no transactional connection to the plaintiff’s

actionable claim may nonetheless be relevant as “me too” evidence. Cox, 

.

       In Cox, the plaintiff, who alleged his firing was motivated primarily by age

discrimination, was not allowed to present the testimony of nearly twenty other

employees who suspected they had been fired for their age at trial. 

.

The Cox court held the trial court abused its discretion in determining the “me-too”

evidence to be inadmissible at trial. 

. Thus, although Mr. Cox would not

have had “standing” to assert MHRA claims on behalf of the age discrimination claims

possessed by these other employees, our Missouri Supreme Court concluded that

evidence of these other firings—which had no transactional connection to Mr. Cox’s

claim—were admissible, because the Court found those firings to be “highly logically

relevant” evidence tending to prove discriminatory intent against Cox in his firing. 

. See also Williams v. ConAgra Poultry Co., 

 (8th Cir. 2004)

(“Evidence of widespread toleration of racial harassment and disparate treatment


                                             17
condoned by management was relevant to its motive in firing [an African-American

employee] Mr. Williams.”); Hall v. Gus Const. Co., 

 (8th Cir. 1988)

(“[E]vidence of sexual harassment directed at employees other than the plaintiff is

relevant to show a hostile work environment.”) (citing Hicks v. Gates Rubber Co., 

 (10th Cir. 1987) (“[O]ne of the critical inquiries in a hostile environment

claim must be the environment. Evidence of a general work atmosphere therefore—as

well as evidence of specific hostility directed toward the plaintiff—is an important factor

in evaluating the claim.”).

       Here, we are not even at the stage of evaluating the admissibility of any evidence

relating to the circumstances and investigation regarding the noose incidents; instead, we

are merely at the stage of discovery—the attempt to determine if any of the circumstances

surrounding the noose incidents are relevant to the topic of proving discriminatory intent

by the District. Without question, the standard for discovery is lower than the standard

for admissibility. Plank, 

.

       Relator’s theory of the case is that the District has facilitated student-on-student

racial harassment either by not properly responding to known past incidents of racial

harassment or by failing to investigate these incidents altogether. Thus, Relator alleges

the District has created an expectation amongst its students that race-based harassment is

not taken seriously, which resulted in Relator’s episode of race-based harassment (i.e.,

racial email incident) and also has exacerbated the emotional harm Relator experienced

as a result of that racial harassment. See Carter v. Chrysler Corp., 

, 701 n.7

(8th Cir. 1999) (citing Schwapp v. Town of Avon, 

, 111-12 (2d Cir. 1997)


                                             18
(“Whether Schwapp was aware of [the incidents prior to his employment] during his

employment, and, more significantly, whether in light of these incidents, the incidents

Schwapp experienced more directly ‘would be reasonably perceived, and [were]

perceived, as hostile or abusive’ are factual issues that should be resolved by a trier of

fact.”) (second alteration in original) (citation omitted)).

       Without permitting discovery regarding the noose incidents, there is no way of

knowing which students or student group perpetrated the noose incidents and whether

there is any connection to the student or student group involved with the race-based

harassment incident targeting Relator (a connection which, if proven, could lead to the

discovery of admissible evidence relevant to the present accommodation claim).

Likewise, there is no way of knowing how seriously the District treated the noose

incidents without discovery into the investigation (or lack thereof) that was performed by

the District and any remedial steps (or not) that were taken by the District. And, there is

no way of knowing if the District’s conclusion that the nooses have nothing to do with a

symbol of lynching African-Americans is patently unreasonable and naïve because, once

again, Respondent has not permitted discovery into what investigation, conclusions, and

students were involved in the noose incidents. Finally, a student standing in Relator’s

shoes, who knows of what may very well be proven to be serious incidents of racially

motivated harassment—the noose incidents—that go unpunished (if they did), is more

likely to feel threatened when victimized in an unrelated incident of racially motivated

harassment because of a lack of faith that her own incident will result in any real

consequences for the offenders. Hence, the District’s response to the noose incidents is


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relevant to evaluate the reasonableness of this belief, and it is certainly relevant to

evaluating Relator’s claim that the District was permitting a racially discriminatory

environment to exist at its schools.

       John Adams was an American statesman, attorney, diplomat, writer, and one of

the Founding Fathers of this country who served as the second President of the United

States from 1797 to 1801. Of “facts,” he once said:

       Facts are stubborn things; and whatever may be our wishes, our inclinations,
       or the dictates of our passions, they cannot alter the state of facts and
       evidence.

       While not all facts become admissible evidence in litigation settings, the process

of a fair and reasonable search for admissible evidence is vital to the integrity of our

country’s system of justice, and it cannot be accomplished when the gatekeepers of facts

and evidence—judges—refuse to permit access to those stubborn facts which may lead to

the discovery of admissible evidence—even where the wishes, inclinations, or dictates of

our passions are such that we would rather avoid uncomfortable facts altogether.

       When we select juries in this country, lawyers and judges often wax poetic about

the Latin phrase, voir dire, reminding the venire panel that it is their obligation to “speak

the truth” about any biases that may prevent them from serving on a jury in a particular

case. But, how can we expect such juries, once selected, to decide the truth unless we

equip them with all of the relevant evidence necessary to make such important decisions

to resolve disputes in our society?

       All of this is to say that we recognize our relief provided today is extraordinary.

However, absent such intervention at this early stage of litigation, there is a danger that


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any subsequent trial of this matter will be tainted by a jury viewing the lens of evidence

in a factually deficient vacuum. This we will not permit.

                                        Conclusion

       Relator’s discovery requests directed to the noose incidents that occurred before

and after the racial email incident that targeted Relator (among other African-American

students at the High School) are reasonably calculated to lead to the discovery of

admissible evidence as to liability and damages relating to Relator’s underlying race-

based MHRA accommodation claim against the District. Respondent’s ruling to the

contrary is an abuse of discretion. Accordingly, we make permanent our preliminary

order prohibiting Respondent from enforcing her discovery rulings relating to the noose

incidents in the Discovery Motion and we make permanent our mandate to Respondent

that discovery by Relator sought in the Discovery Motion be compelled by sustaining the

Discovery Motion (subject to any reasonable FERPA protections deemed legally

necessary by Respondent) as to the noose incidents documented by Interrogatories

numbered 1-3, 7-10, and 14 and Requests for Production of Documents numbered 10-21,

36-47, 54-58, and 60. In all other ways, Respondent is directed to permit future

discovery (including, for example, depositions of individuals identified by the written

discovery requests) consistent with today’s ruling.


                                          ______________________________________
                                          Mark D. Pfeiffer, Judge

Lisa White Hardwick, Presiding Judge, and W. Douglas Thomson, Judge, concur.




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