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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

S.C., by and through next friends KELLY ) Case No. 2:21-cv-626

COOPER and KRIS COOPER, )
) Judge ______________________
Plaintiff, )
)
v. ) Magistrate Judge ______________
)
NORTH FORK LOCAL SCHOOL )
DISTRICT BOARD OF EDUCATION )
(Farrah Cooperider, Bernard Snow, Barbara )
Bruce, Andy Hollenback, and Deb Paxton, )
in their official capacities), )
)
and )
)
SCOTT HARTLEY, )
Superintendent, North Fork Local School )
District, in his official and personal capacities, )
)
and )
)
MARK BOWMAN, )
Principal, Utica High School, )
in his official and personal capacities, )
)
and )
)
BRIAN RADABAUGH, )
Athletic Director, Utica High School, in his )
official and personal capacities, )
)
Defendants. )

COMPLAINT WITH JURY DEMAND ENDORSED HEREON

I. INTRODUCTION

1. Kelly and Kris Cooper, parents and next friends of the Plaintiff, minor S.C., a

biracial student at Utica High School (“UHS”), bring this lawsuit for damages, declaratory and

injunctive relief, attorneys’ fees, and costs on his behalf, pursuant to the First and Fourteenth

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Amendments to the U.S. Constitution, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d,

and Ohio R.C. 2921.45 and 2307.60, against Defendants North Fork Local School District Board

of Education (“Board”), which operates the North Fork Local School District, including UHS;

North Fork’s superintendent; and the principal and athletic director of UHS.

2. The Defendants violated S.C.’s constitutional and state and federal statutory rights

by suspending him from interscholastic sports because he used an American flag to wipe the visor

of his helmet during a UHS football game. These actions were part of a pattern of discriminatory

disciplinary actions and treatment toward S.C. by school administrators and white students because

of his race. The Defendants’ actions also violated S.C.’s constitutional and statutory rights by

subjecting him to impermissible punishment because of his actual and perceived expressive speech

and conduct regarding issues of public concern. This speech and expressive conduct included

S.C.’s history of objecting to the Defendants’ pattern of race discrimination, as well as actions by

S.C. that failed to adhere to the Defendants’ political viewpoint, and which the Defendants

perceived as political dissent.

3. The Defendants’ actions, which violated the U.S. and Ohio Constitutions and Title

VI of the Civil Rights Act of 1964, also constituted a criminal denial of his civil rights under color

of the individual Defendants’ offices, and are therefore actionable pursuant to Ohio Revised Code

Sections 2921.45 and 2307.60.

II. JURISDICTION AND VENUE

4. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 (federal

question) and 1343 (civil rights) and should exercise its supplemental jurisdiction pursuant to 28

U.S.C. § 1367 because the state and federal law claims alleged herein share a common core of

operative facts.

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5. Compensatory damages are sought against all Defendants pursuant to 42 U.S.C.

Section 1983 and, against Defendants Bowman and Radabaugh, pursuant to Ohio Revised Code

§ 2307.60, and against the Board, pursuant to Title VI of the Civil Rights Act of 1964 (42 U.S.C.

§ 2000d), while punitive damages are being sought against Defendants Bowman and Radabaugh

under 42 U.S.C. § 1983, Ohio Revised Code 2307.60, and the common law of the State of Ohio.

6. Declaratory and injunctive relief is sought pursuant to 28 U.S.C. §§ 2201 and 2202,

42 U.S.C. § 1983, Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d), Ohio Revised

Code § 2307.60; and the common law of the State of Ohio.

7. Costs and attorneys’ fees may be awarded pursuant to 42 U.S.C. § 1988, Title VI

of the Civil Rights Act of 1964 (42 U.S.C. § 2000d), Ohio Revised Code 2307.60, and the common

law of the State of Ohio.

8. Venue is proper pursuant to 28 U.S.C. § 1391(b) and S.D. Civ. R. 82.1 because the

discriminatory and retaliatory acts were and are now being committed in and around Licking

County, which is within the jurisdiction of the U.S. District Court for the Southern District of Ohio,

Eastern Division.

III. PARTIES

9. Plaintiff S.C. is a minor resident of Utica, Ohio, in Licking County, which is in the

Southern District of Ohio, Eastern Division. Kelly Cooper and Kris Cooper are S.C.’s parents and

authorized to bring this action on S.C.’s behalf as his next friends.

10. Defendant North Fork Local School District Board of Education (“Board”), which

consists of five members, is a state actor; controls the North Fork Local School District (“District”)

that, over a territory of 133 square miles, provides public education at Utica High School,

Utica Middle School, Newton Elementary, and Utica Elementary to more than 1,656 students,

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receives more than $60,000 annually in federal funds, and is a public entity under Title VI of the

Civil Rights Act of 1964; had the final authority to adopt and apply student behavior policies and

delegated that authority in part to Defendants Bowman and Radabaugh; and at relevant times

exercised that authority with malice and/or deliberate indifference toward S.C.’s rights.

11. Defendant Scott Hartley, who is being sued in his official and personal capacities,

is a state actor; was employed at all relevant times as the District’s Superintendent, with the

authority to make disciplinary decisions and adopt and apply student behavior policies with respect

to students (including S.C.) who attend school and play interscholastic sports at UHS; and, within

the scope of his employment and under color of law, exercised that authority with malice and/or

deliberate indifference toward S.C.’s rights.

12. Defendant Mark Bowman, who is being sued in his official and personal capacities,

is a state actor; was employed at all relevant times as the principal of UHS, with the authority to

make disciplinary decisions and adopt and apply student behavior policies with respect to students

(including S.C.) who attend school and play interscholastic sports at UHS; and, within the scope

of his employment and under color of law, exercised that authority with malice and/or deliberate

indifference toward S.C.’s rights.

13. Defendant Brian Radabaugh, who is being sued in his official and personal

capacities, is the dean of students and athletic director of UHS, with the authority to take

disciplinary actions and apply student behavior policies and make recommendations with respect

to students (including S.C.) who attend UHS and play interscholastic sports; and, within the scope

of his employment and under color of law, exercised that authority with malice and/or deliberate

indifference toward S.C.’s rights.

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IV. FACTS

S.C.’s Background and September 2020 Incident Involving the American Flag

14. On September 11, 2020, S.C., a junior and a member of the UHS football team, left

the field after a play in the fourth quarter of the game against Northridge High School.

15. While many high school, college, and professional sports teams have been moving

away from mascots considered derogatory towards American Indians, the nickname for Utica High

School athletic teams remains the “Redskins,” a racial slur directed at American Indians. The

school’s mascot is an American Indian caricature in full headdress named the “Utica Redskin.”

16. S.C. is biracial. His father is Black and his mother is white. At the time, S.C. was

the only student of color on the Utica High School football team.

17. S.C. had played on both offense and defense during the game, participating in

nearly every play of the game. He left the field with his arms raised, as he had been instructed to

do when he was physically exhausted, in order to increase oxygen intake.

18. S.C.’s uniform included a helmet with a transparent face shield, which would fog

up over the course of the game and need to be wiped with a cloth to allow him to see.

19. Due to health restrictions from the ongoing COVID-19 pandemic, football teams

in the area were not permitted to provide common towels for the players’ use. UHS’s athletic

program declined to provide individual towels for the players. As a result, when S.C. left the field,

with his one personal towel soiled from game play, he was unable to find a usable towel to wipe

his visor.

20. S.C., with his helmet still on and fogged up, dropped to one knee and began trying

to use his hands to clear the fog from his visor so he could see and be ready to return to the game

if needed. He then stood and attempted to find a cloth to wipe his visor. He reached a set of tables

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arranged on the sideline that was used for holding medical and other supplies, but still could not

find anything.

21. The UHS team’s standard practice at the time was to display an American flag on

the sideline. The manner in which the flag was transported and displayed on the field was

frequently contrary to the U.S. Flag Code (4 U.S.C. § 1, et seq.).

22. For instance, the flag was often allowed to touch the ground, in violation of 4 U.S.C.

§ 8(b) (“The flag should never touch anything beneath it, such as the ground, the floor, water, or

merchandise.”). This occurred at least once during the game on September 11, 2020, and had also

occurred during the game on September 4.

23. In addition, the flag was displayed on a short pole in an area of heavy foot traffic,

in violation of 4 U.S.C. § 8(e) (“The flag should never be fastened, displayed, used, or stored in

such a manner as to permit it to be easily torn, soiled, or damaged in any way.”).

24. All of the Board employees and/or students responsible for these repeated

violations of the flag code are white. Upon information and belief, none of them has been

disciplined in any way for these violations.

25. At the time S.C. left the field in the fourth quarter on September 11, 2020, the flag

was propped up by the medical supply table, with the pole weighted down by a water container

and the flag itself at S.C.’s eye level.

26. S.C. reached out, grasped the flag, and briefly used it to clear the fog from his

helmet visor.

27. S.C. knew the object he was grasping and using to wipe his visor was the American

flag. He made the decision to use the flag in that manner because he did not consider the flag to

be a sacred object of national pride that should be used only as a symbol of affirmative patriotism.

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This view regarding the flag was contrary to the viewpoint prevailing among the District’s

administration and likely many observers of the game.

28. Observers knew that S.C. was the only player of color on the UHS football team,

many of them had seen him kneel during the Star Spangled Banner in the previous game, and they

realized that he was expressing his political views in kneeling. They could easily have understood

and, upon information and belief, did believe that S.C. had used the flag as a cleaning cloth because

of his political views, and/or because he did not share a political viewpoint that would have caused

him to refrain from touching it or using it in that manner (i.e., associating the American flag with

a strong positive feeling of patriotism and considering it a sacred object of national pride).

The Flag Incident Receives Public Attention, Leading the Defendants to Punish S.C.

29. No one remarked on S.C.’s use of the flag to clear his visor for the remainder of the

game. However, the same evening, a white female Utica High School senior and member of the

cheerleading team posted on Facebook, claiming she witnessed the incident. The cheerleader

described the incident in a racially hostile tone, stating:

tonight at our football game i witnessed one of our own utica football players wipe their
sweat off there face and helmet with.. get this... AN AMERICAN FLAG that was standing
behind the bench. i do not care what color your skin tone is, what your religion is or what
you think is right. Disrespecting our country and what millions of people have fought for
our own freedom to honor that flag each and everyday of our lives is crossing the line for
me, even on 9-11, i cannot believe this boy had the audacity to do such a disgusting thing
infront of our entire standium. i hope you get what you deserve. i'm so embarrassed.. oh
did i mention he also neals for the national anthem? unfriend me if you don’t like this post
but i know i’m not the only one that feels this way. [sic throughout]

A true and accurate reproduction of the post, with the minor cheerleader’s name redacted, is

attached as Exhibit 1 to this Complaint.

30. The cheerleader’s post was shared widely in the local community, and other

community members commented on the post with additional hostile language, including several

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posts from local adults fantasizing about how S.C. should be punished for disrespecting the flag,

including violence, public humiliation, and forced conscription.

31. On the morning of September 12, 2020, the day after the game and the cheerleader’s

Facebook post, S.C. was confronted by Utica’s head football coach and an assistant coach. The

coaches told S.C. a cheerleader had seen his use of the American flag at the game, and asked him

if the report was true. S.C. confirmed that it was. He was not provided with an opportunity to

explain his action.

32. S.C. was then sent home from practice with a letter signed by Defendant Radabaugh

and the head football coach, denying him participation in extracurricular activities (including

football) until further notice for “conduct unbecoming of a Utica football player.” A true and

accurate copy of this letter (with S.C.’s full name and address redacted) is attached as Exhibit 2 to

this Complaint.

33. It is clear that the letter had been prepared and signed prior to the coaches’

conversation with S.C., upon the authority of Defendant Radabaugh, as Defendant Radabaugh

signed the letter but was not present for the conversation or the morning’s football practice.

34. On or about September 14, 2020 (the Monday following the Friday, September 11

football game), S.C. found a note in the car he was driving to school, stating “Die Nigger.”

35. Also on September 14, 2020, Defendant Radabaugh informed Kelly Cooper by

telephone that S.C. was suspended from the rest of the football season and for all sports for the

remainder of the 2020-2021 school year. No explanation was provided.

36. In the same telephone conversation, Ms. Cooper immediately informed Defendant

Radabaugh that she wanted to appeal this determination, at which point he transferred her to

Defendant Bowman. Ms. Cooper reiterated her appeal request. Defendant Bowman initially

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instructed her to appeal in writing, but then asked Defendant Radabaugh (who was apparently

nearby) if a verbal appeal could be accepted, and he confirmed it could.

37. The following day, September 15, 2020, S.C. received a written suspension letter,

dated September 14 and signed by Defendant Radabaugh and the head football coach. This letter

confirmed S.C.’s suspension from extracurricular activities for the remainder of the school year

(September 14 to May 31, 2021), for the stated reasons, “Violation of Student Code of Conduct

M. Violation of Student Activities Code of Conduct Rule 1 and 11B.” A true and accurate copy of

this letter (with S.C.’s full name and address redacted) is attached as Exhibit 3 to this Complaint.

38. Although Defendant Radabaugh was the senior-most official who signed the letter

in Exhibit 3, Defendants Hartley and Bowman approved and helped to draft the letter and

determine S.C.’s punishment. Defendant Bowman subsequently informed Kelly and Kris Cooper

that Defendant Hartley worked with Defendant Radabaugh to determine what rule violations to

include in the letter suspending S.C.

39. Utica High School’s Student of Conduct M prohibits “Intimidating, Threatening,

Degrading Acts.” Student Activities Code of Conduct Rule 1 requires student athletes to “comply

with a code of conduct which will entitle him/her to the honor and respect which he/she has

rightfully earned through competition,” and Rule 11B prohibits “[d]isrespect to coaches, officials,

school personnel, or any unbecoming behavior during a contest.”

40. On September 20, 2020, Defendant Bowman re-posted on Facebook a post he had

made in 2016 regarding standing for the national anthem. The post was a response to the

controversy at the time (and ongoing since) about athletes (including, most prominently, former

NFL quarterback Colin Kaepernick) kneeling for the national anthem to protest systemic racism

and police brutality toward Black citizens. In his 2020 post, Bowman copied the text of his prior

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post and stated, “4 years ago I wrote this. I thought it was needed. Seems more needed now”. A

true and accurate reproduction of the post is attached as Exhibit 4 to this Complaint.

41. Defendants adopted Rule 11B in the Student Activities Code of Conduct in part

because they wanted UHS policy to suppress political expression they deemed inappropriate.

42. The adoption of Rule 11B in the Student Activities Code of Conduct to S.C. and

the Defendants’ authoritative interpretation of the rule proximately caused them to suspend S.C.

43. The Defendants personally disagreed with S.C.’s political views. They justified

S.C.’s suspension using Rule 11B in the Student Activities Code of Conduct, not using their

personal political views.

44. Had S.C. acted in a way that was consistent with the personal political views of

Defendants, however, they would not have deemed him in violation of Rule 11B in the Student

Activities Code of Conduct.

45. A motivating and/or determining factor in the suspension of S.C. was Defendants’

application of Rule 11B in the Student Activities Code of Conduct in a way that censored political

views they did not share, and, but for S.C.’s expression regarding the flag as well as his direct or

indirect complaints about discriminatory treatment and a racially hostile environment, he would

not have been suspended.

White Utica Students Are Punished Less Harshly Despite Committing More Serious
Misconduct

46. On or about September 21, 2020, Kelly Cooper sent Defendant Bowman a parent

complaint form, objecting to the treatment of S.C. (including his suspension), informing him of

the threat he had received on his car, and notifying Bowman of the inappropriate, racially hostile

and threatening conduct of the cheerleader who had posted about S.C. on Facebook.

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47. Ms. Cooper’s parent complaint letter also reminded Defendant Bowman that the

school had repeatedly failed to take action with respect to incidents in which white Utica student

athletes had used the “N word” toward S.C. and athletes from other schools.

48. Specifically, Ms. Cooper’s letter referenced two prior incidents in which

Defendants Bowman and Radabaugh, acting on behalf of the District, treated white students more

favorably than S.C., demonstrated overt tolerance for racist conduct by white students, and

protected them from the consequences of actions that clearly violated school rules.

49. These prior incidents included an incident in October 2019 in which S.C. reported

to Defendant Radabaugh and the head football coach that multiple Utica players had used the “N

word” toward Black players from the opposing school’s team during a football game. Only one

of the white students who was confirmed to have used the slur was disciplined in any way, and

even that one white student was suspended from participation in only one football game, not an

entire season or school year.

50. Earlier in 2019, S.C. had also received a longer suspension—three days out of

school and six basketball games—after a verbal altercation with a white Utica basketball player,

while the white player involved in the altercation received no discipline at all.

51. Upon information and belief, the discipline the white football player received based

on the October 2019 incident was excluded from his official file in order to protect him from future

consequences, including in college sports recruiting. This was not done for S.C.

52. In early 2020, S.C. was again suspended from basketball based on a false allegation

that he had yelled a profanity at a coach. The white teammate who accused S.C. of yelling the

profanity at the coach had initiated a verbal altercation with S.C. in which he put his finger in

S.C.’s face and told him he should “go home and never come back” because “no one likes you

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here anyway.” S.C. denied yelling a profanity toward the coach, but Defendant Radabaugh, who

was not present and had not interviewed any of the many witnesses to the incident, called S.C. a

liar and suspended him from four basketball games. The white teammate who had attempted to

start a fight with S.C. was not disciplined in any way.

53. On August 28, 2020, two weeks before the incident for which S.C. was suspended,

the white student who had been disciplined for using the “N word” and S.C. agreed to kneel for

the national anthem in a show of solidarity. No punishment was issued by the Defendants toward

S.C. or the white student for this preplanned demonstration of racial unity.

Defendants Uphold S.C.’s Suspension for the Remainder of the 2020 Football Season

54. On September 22, 2020, Defendant Bowman held an appeal hearing regarding

S.C.’s athletic suspension, which both Kelly Cooper and Kris Cooper attended, along with a

representative from the local chapter of the National Association for the Advancement of Colored

People (NAACP). Defendant Bowman presided over an appeal panel that also included two of his

subordinates, a high school counselor and a high school teacher. The District’s middle school

principal was also present.

55. At the appeal hearing, Defendant Bowman directly admitted that S.C. was being

punished for “disrespect” of the American flag, which he interpreted as “disrespect to everybody.”

56. Following the hearing, Defendant Bowman forwarded a message to Kelly Cooper,

informing her that S.C.’s suspension from the remainder of the football season was upheld, but

that he would be permitted to participate in sports following the football season.

57. Defendant Hartley, as superintendent, was also formally informed of and ratified

the upholding of S.C.’s suspension.

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58. Defendant Bowman also replied to Kelly Cooper’s parent complaint by claiming

that the school lacked jurisdiction to punish students for their social media activity during their

“private time.” Upon information and belief, no discipline was issued toward the cheerleader who

called S.C. “boy” and publicly told him that “i hope you get what you deserve.”

59. The actions described in the above paragraphs were because of S.C.’s race and in

retaliation for his actual and perceived acts of freedom of speech and expression protected by the

U.S. and Ohio Constitutions, including his prior reports of racist conduct by white Utica High

School student athletes, his actual and perceived protest of kneeling during the national anthem at

a football game, and his act of using the flag to wipe his helmet visor, which conflicted with the

Defendants’ political viewpoint toward the flag and was perceived as an act of political dissent.

60. These actions were part of a pattern and practice of protecting white students for

the consequences of racist conduct while punishing S.C., a non-white student, for conduct he did

not commit, which did not violate any rules, or which was less serious than conduct for which

white students were not punished or were punished less severely.

61. The actions described in the above paragraphs caused S.C. great expense, including

jeopardizing valuable college scholarships and recruiting opportunities by depriving him of

playing time, damaged his reputation, and proximately inflicted embarrassment and anguish.

62. The actions described in the above paragraphs deprived S.C. equal access to

education opportunities or benefits by inflicting or ratifying a severe, pervasive, and objectively

offensive racially hostile learning environment.

63. Defendants knew that racist slurs were being used toward S.C. by UHS students

and/or individuals who had access to UHS’s campus and failed to take prompt and effective steps

to protect S.C., not even competently investigating the use of slurs by white athletes and others,

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reprimanding the abuse of social media they knew students would view, and/or reasonably

disciplining those who used racial slurs.

64. Defendants’ deliberate indifference to S.C.’s right to be free from a racially hostile

environment reinforced the racism of some students by signaling a tolerance of such racism in

general and threats and attacks on S.C. in particular and aggravated S.C.’s pain and suffering from

the racism he experienced.

65. Defendants’ actions described above, and the actions of their agents and employees,

which were within the scope of their employment, were at all relevant times exercises of authority

with malice and/or deliberate indifference toward S.C.’s rights.

V. CLAIMS FOR RELIEF

A. Violations of the First and Fourteenth Amendments to the U.S. Constitution

66. Plaintiffs incorporate the above paragraphs as if fully rewritten herein.

67. By retaliating against S.C. in response to his objection to the Defendants’ prior acts

of race discrimination and/or his political views on respecting the American flag, Defendants

violated the First and Fourteenth Amendments to the U.S. Constitution.

B. Violations of the Fourteenth Amendment to the U.S. Constitution and Title VI

of the Civil Rights Act of 1964

68. Plaintiffs incorporate the above paragraphs as if fully rewritten herein.

69. By subjecting S.C. to discrimination based on his race and retaliation for his

opposition to discriminatory treatment and a racially hostile environment he sincerely believed

Defendants had inflicted or ratified and which he reasonably perceived as discrimination,

Defendants violated the Fourteenth Amendment to the U.S. Constitution, and Defendant Board

violated Title VI of the Civil Rights Act of 1964.

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C. Civil Action for Damages from Criminal Conduct

70. The preceding paragraphs are hereby incorporated and re-alleged.

71. By subjecting S.C. to discrimination based on his race, a status guaranteed equal

protection of the law under Article I, Section 2 of the Ohio Constitution, and by retaliating against

him because of his objection to Defendants’ prior acts of race discrimination and/or his political

views on respecting the American flag, expression protected under Article I, Section 11, of the

Ohio Constitution, Defendants Bowman and Radabaugh violated Ohio R.C. 2921.45, which makes

it a crime for Ohio public servants acting under color of their office to knowingly deprive, conspire,

or attempt to deprive any person of a constitutional or statutory right, and they are, therefore,

subject to a civil action for damages under Ohio R.C. 2307.60.

VI. PRAYER FOR RELIEF

72. WHEREFORE, the Plaintiff, by and through his next friends, requests the

following relief: (1) declaratory relief establishing the Defendants’ violations of S.C.’s rights; (2)

a permanent injunction ordering the Defendants to cease its pattern of discriminatory discipline

toward S.C. and similarly situated Black and biracial students; (3) compensatory and punitive

damages in an amount to be determined at trial; (4) the costs of this action, including attorneys’

fees; and (5) such other relief as the Court deems appropriate.

Respectfully Submitted,

/s/Jeffrey P. Vardaro___________
Jeffrey P. Vardaro (0081819)
jvardaro@gitteslaw.com
Frederick M. Gittes (0031444)
fgittes@gitteslaw.com
The Gittes Law Group
723 Oak St.
Columbus, OH 43205
(614) 222-4735
Fax: (614) 221-9655

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/s/ Edward R. Forman__________

Edward R. Forman (0076651)
OF COUNSEL: (eforman@marshallforman.com)
Louis A. Jacobs (002101) John S. Marshall (0015160)
(LAJOhio@aol.com) (jmarshall@marshallforman.com)
177 19th St., Apt. 9C MARSHALL & FORMAN LLC
Oakland, CA 94612 250 Civic Center Dr., Suite 480
(614) 203-1255 Columbus, Ohio 43215-5296
Fax (614) 463-9780 (614) 463-9790
Fax (614) 463-9780

Attorneys for Plaintiff

JURY DEMAND

The Plaintiff hereby demands a jury of eight (8) to determine all issues triable by jury in

this matter.
/s/Jeffrey P. Vardaro___________
Jeffrey P. Vardaro (0081819)

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