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May 14, 1993

CARMELETTA PARKER and MISTY PARKER, minors, by their next friend, MARILYN PARKER, Plaintiffs,

The opinion of the court was delivered by: WILLIAM T. HART

 I. Introduction

 This action is brought pursuant to the Civil Rights Act, 42 U.S.C. § 1981, by three African-American citizens to secure rights to make and enforce educational contracts on the same terms as are enjoyed by white citizens. The parties do not dispute the jurisdiction of the court.

 Plaintiffs, Carmeletta Parker and Misty Parker are students of defendant, Trinity High School ("Trinity"). The action is brought on their behalf by their mother, plaintiff Marilyn Parker. Trinity is operated as a private Catholic secondary school for women by defendant, The Order of Dominican Sisters of Sinsinawa, Wisconsin. The Board of Directors of Trinity High School is also named a defendant, but the members of the Board are not identified or individually named.

 In the complaint and in a motion for a temporary restraining order and a preliminary injunction, it is alleged that on March 23, 1993, Carmeletta and Misty Parker engaged in a fight with another student as a result of which they were expelled. Carmeletta is a senior and scheduled to graduate on May 22. Misty is a freshman. Plaintiffs allege that they had unblemished records, that the school rules of discipline do not provide that fighting is a ground for dismissal, that the rules provide for other types of progressive discipline, and that white students have engaged in the same type of conduct, and more serious conduct, without being expelled. Plaintiffs sought a temporary restraining order.

 A temporary restraining order is appropriate to maintain the status quo until a hearing can be held to determine whether or not a preliminary injunction should be entered pending a final determination on the merits. A temporary restraining order is intended to maintain the status quo for only a short period of time. Here it appeared that if a temporary restraining order were denied, the expiration of time alone could well make the preliminary relief sought by the plaintiffs moot. Further, it did not appear that the incident which gave rise to the suit would be repeated in the short time needed to conduct a hearing or that the restraining order would prevent the defendants from enforcing the discipline imposed if preliminary relief was later denied. For these reasons, a temporary restraining order was granted requiring that the plaintiffs be returned to class pending a decision on the request for a preliminary injunction.

 The temporary restraining order was conditioned on the plaintiffs Carmeletta and Misty Parker's good behavior and obedience to the rules of the school and the directives of the faculty. Defendants state that, in one instance, Carmeletta violated the restraining order by failing to obey an instruction from a teacher.

 An evidentiary hearing was held on April 27 and April 29, 1993. Plaintiffs, Marilyn, Carmeletta and Misty Parker testified. Plaintiffs also called Amonicanetta ("Mona") Parker, a third-year student at Trinity and sister of Carmeletta and Misty Parker. Defendants called faculty members Cindy Romano, Alita Cozza, Rosemary Caragher, Marilyn Hosty, and Diana Pascarella. Trinity also called Catherine Brady, school secretary and dean of students from 1967 to 1992, Bridget O'Malley, assistant principal and dean of students, and Sister Jeanne Bessette, OSF, principal. Oral argument was heard on May 7, 1993.

 Defendants deny that the discipline imposed on plaintiffs was racially motivated or more severe than that imposed on white students who engaged in equally serious conduct.

 There are equities on both sides, and this is a difficult case.


 1. Trinity High School is a private Catholic High school for women. It is operated by a Catholic order of nuns, the Dominican Sisters of Sinsinawa, Wisconsin. several members of the faculty testified about the school's long history in the education of women. Discipline is strict. students are required to wear uniforms and to comply with rules of conduct that must be acknowledged in writing by both the student and a parent or guardian.

 2. The Trinity High School Mission Statement is as follows:

Trinity is a Catholic high school that participates in the mission of the church to witness to the action of God in our world.
Trinity fosters the development of young women through religious education and a liberal arts college preparatory curriculum with opportunities for enrichment, advancement and personal growth.
In keeping with the Dominican tradition, Trinity promotes a life-long love, respect and search for truth and justice.
Within a value-centered learning community, Trinity nurtures a secure and respectful environment in which students prepare to take their place as leaders of society, church and family in the twenty-first century.

 3. The Trinity Belief Statement is as follows:

We, the Trinity High School Community believe :
that each individual has a right to an education regardless of race, religion or nationality
that each individual is called to make and live out her faith and commitment
that a Gospel-centered environment provides opportunities for young women to experience God in their lives and to witness to the Word through community service
that faith, respect, service, social awareness and responsibility are fostered and developed in a Catholic school
that a single sex school uniquely promotes high academic achievement and provides opportunities to strengthen self-confidence and leadership skills
that the curriculum and activities of a school exist to challenge young women to develop to their fullest potential, as individuals, as Christians and as citizens
that learning is a life-long process which must extend beyond formal education.

 4. Trinity accepts students who are not of the Catholic faith. The Parkers belong to a Pentecostal church. The student body is racially integrated. Although recent total enrollment has been declining, minority enrollment has been increasing. Total enrollment for the 1992-93 school year was 501. There are 339 (68%) caucasians, 92 (18%) African-Americans, 54 (10.8%) Spanish-Americans, and 16 (3.2%) Asian-Americans. The faculty is white.

 5. The conduct which gave rise to the discipline at issue was as follows:

 Sometime prior to March 23, Cina G. ("Cina"), a student at Trinity, dyed her hair. Carmeletta Parker was among students who made unflattering comments about Cina's hair. Cina returned the compliment by calling Carmeletta a vile name. On March 23, at about 3:00 P.M., Carmeletta Parker sought out Cina on the third floor of the school to discuss their differences. A faculty member, Ms. Romano, was nearby and heard angry words. She addressed both girls, telling them to settle down. Cina threw her books on the floor and approached Carmeletta. Both students ignored the teacher's direction to move away and discuss the matter. The students started to fight. Cina struck the first blow. The teacher stepped away to give her books and a camera to a student and then tried to step between the fighting students. She and the grappling girls moved across the hallway, and Ms. Romano was shoved up against a locker. The students were pulling each others' hair. They would not comply with repeated commands to separate.

 Alita Cozza, another faculty member who came to assist, also commanded the students to stop and attempted to pull them apart.

 Diana Pascarella, a teacher, came to the assistance of the others and called for order.

 Carmeletta began to release her hold first. Assembled faculty members grabbed both students.

 In the meantime, Misty Parker came to the third floor. Ms. Romano turned to get her books and Misty Parker and Cina attacked each other. Misty and Cina pulled each others' hair. Ms. Romano tried to separate them and was clawed by Misty, who thought she was attacking Cina. When Ms. Romano told Misty that she was scratching her arm, Misty released Ms. Romano's arm.

 Teachers Rosemary Caragher and Bill Frere joined the effort to control the fighting students. Ms. Caragher pulled Misty away, by holding her around the waist. As she pulled her away, Misty tried to reenter the fight and both Misty and Ms. Caragher fell to the floor.

 Carmeletta started toward the fight between Misty and Cina but was blocked by Ms. Hosty. Carmeletta began flailing her arms, striking Ms. Hosty in the chin and upper body.

 After the students were separated for the second time, verbal abuse continued. Mona Parker joined in with a verbal assault on Cina. Someone held Mona back.

 The students were escorted to the office, each by teachers. Ms. Romano escorted Cina to the office. Misty Parker was escorted by Ms. Caragher. When Cina walked in, Misty had to be restrained by Ms. Caragher from attacking Cina. The verbal insults continued. At one point Misty reached for a statue or a vase in attempt to use it as a weapon or to throw it. Ms. Caragher intervened.

 After the fighting students were accompanied to the office, another teacher gathered fallen jewelry and books and reassured students frightened by the exchange.

 6. Ms. Romano suffered minor fingernail cuts on her arm. Ms. Caragher experienced leg bruises and a torn skirt. Ms. Hosty was hit on the chin and upper body.

 7. Mrs. Parker was called to the school and the students were sent home. Mrs. Parker instructed the girls to apologize, which they did. That evening Carmeletta and Misty Parker each wrote letters to the school and faculty, apologizing for their conduct. Neither student has ever been seriously disciplined by the school. Marilyn ...

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