The opinion of the court was delivered by: McLaughlin, J.
This is a suit on behalf of a high school student of Brazilian ancestry alleging race and ethnic background discrimination at his former school. There are three pending motions in this case: the plaintiffs' motion to amend their complaint, the defendants' motion for summary judgment, and the plaintiffs' motion to stay consideration of the summary judgment motion until a decision on the motion to amend. For the reasons that follow, the Court will deny all three motions.
The plaintiffs here are John and Rosana Broom, who are suing individually and on behalf of their son, Michael Broom. The three defendants are the teacher who allegedly committed the discriminatory conduct, Louis Valenti; the Catholic school that Michael Broom attended, Saints John Neumann & Maria Goretti Catholic High School (the "school"); and the Archdiocese of Philadelphia (the "Archdiocese"), which owns the school.
In their complaint, the plaintiffs allege that Michael Broom was the only Latin American student at the school. He enrolled in January 2008 and was assigned to defendant Valenti's theology class. Over the next semester, the plaintiffs allege that Valenti continually made jokes at Michael Broom's expense and created a hostile work environment. One object of Valenti's remarks was Broom's long hair (which satisfied the school dress code). Among the ways in which Valenti made fun of Broom's hair was by allegedly telling the class that Brazilians don't wear clothes but instead use their long hair to cover their bodies. Valenti also allegedly made derogatory remarks about Brazil, including saying that the country was ugly.
The plaintiffs state that they complained to the school's principal about Valenti's conduct and were told that Valenti had had similar problems at other schools. Broom's parents were dissatisfied with the school's response and complained to the Archdiocese. The plaintiffs allege that neither the school nor the Archdiocese did anything about Valenti, and, as a result, Michael Broom's grades fell, he became disillusioned with religion, and ultimately transferred to public school.
The plaintiffs' complaint brings claims against all defendants for discrimination under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VI"); under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 ("Title IX"); and under The Civil Rights Act of 1866, 42 U.S.C. § 1981 ("§ 1981"). Compl. ¶ 1. As relief, the plaintiffs seek compensatory, punitive, and statutory damages, plus unspecified injunctive relief.*fn1
On April 13, 2010, the plaintiffs filed a motion seeking leave to file an amended complaint.*fn2 The motion states that the plaintiffs have been served by the defendants with a proposed Rule 11 motion that charges that the plaintiffs have no factual basis to allege (as they did in their initial complaint) that the defendants were the recipients of federal funds. To take advantage of the safe harbor provisions of Rule 11, the plaintiffs say that they seek to file an amended complaint bringing claims only for "§ 1981, § 1983, and equitable relief." Although the motion did not include a proposed amended complaint, the plaintiffs subsequently filed one with the Court on April 30, 2010 (Docket No. 26). The proposed amended complaint makes clear that the plaintiffs seek to drop their claims under Title VI and Title IX (which, by their terms, apply only to recipients of federal funds) and bring claims against the defendants only under § 1983 and § 1981. The proposed amended complaint does not contain a claim for equitable relief, and the plaintiffs have subsequently made clear that they are withdrawing that claim. See Pl. Reply Mem. (Docket No. 29) at 1.
In addition to filing an opposition to the motion to amend, the defendants also filed a motion for summary judgment on the claims in the initial complaint. In both filings, the defendants argue that the plaintiffs cannot bring claims under Title VI and Title IX because none of the defendants is a recipient of federal funds, that they cannot bring claims under § 1983 because none of the defendants is a state actor, and that they cannot bring claims under § 1981 because that statute does not reach discrimination on the basis of national origin. The only evidentiary material attached to the motion for summary judgment is a letter to one of the plaintiffs from the U.S. Department of Education confirming that neither the Archdiocese nor the school receives federal funds.
The plaintiffs did not file an opposition to the defendants' motion for summary judgment, but instead filed a motion for a stay, asking the Court to put off considering the summary judgment motion until a decision on the motion to amend and asking, in the alternative, for an unspecified enlargement of time to respond. The plaintiffs, however, addressed the arguments raised in the defendants' summary judgment motion in their reply brief in support of their motion to amend, arguing that they could state valid claims against all defendants under both § 1981 and § 1983.
The Court will now decide all three motions.
As a threshold matter, the Court recognizes that the plaintiffs have stated in their briefing that they will not be pursuing pursue their Title VI and Title IX claims or their claims for equitable relief. The Court will therefore memorialize in its Order resolving these motions that these claims have been voluntarily dismissed against all defendants.
The Court will deny the plaintiffs' motion to amend.
In general, a court should "freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). A request to amend may be denied, however, when the amendment would be futile. Hill v. City of Scranton, 411 F.3d 118, 134 (3d Cir. 2005). An amendment is futile when it would not withstand a motion to dismiss. Garvin v. City of Philadelphia, 354 F.3d 215, 222 (3d Cir. 2003).
Here, the new claim to be added in the amended complaint is one against all defendants under § 1983. One of the required elements of a § 1983 claim is that a defendant act "under color of law." Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). The "under color of law" requirement means that merely private conduct, no matter how discriminatory or wrongful does not violate § 1983. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999).
Determining whether a defendant acted under color of law depends on whether "there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005). This inquiry involves three broad issues: whether the private entity has exercised powers that are traditionally the exclusive prerogative of the state; (2) whether the private party has acted with the help of or in concert with state officials; and (3) whether the state has insinuated ...