Opinion

Henderson v. Board of Supervisors of Southern University

Court
District Court, M.D. Louisiana
Filed
Mar 23, 2022
Cited by
0 cases
Authority
More cited than 22.5%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

JILL HENDERSON, ET AL.

CIVIL ACTION

VERSUS

NO. 21-297-JWD-RLB

BOARD OF SUPERVISORS OF

SOUTHERN UNIVERSITY AND A&M

COLLEGE, ET AL.

RULING AND ORDER

This matter comes before the Court on Defendants’ Motion to Dismiss Plaintiff’s Claims

(Doc. 5) filed by Defendants Board of Supervisors of Southern University and A&M College

(“Southern”); Herman Brister, Jr., individually and in his official capacity as director of the

Southern Laboratory School (“Brister”); and Renita Sherrard, individually and in her official

capacity as assistant principal of the Southern Laboratory School (“Sherrard”) (collectively,

“Defendants”). Plaintiff Jill Henderson, individually and on behalf of her minor son J.T.

(“Plaintiff”), opposes the motion. (Doc. 7.) Defendants filed a reply. (Doc. 10.) Oral argument is

not necessary. The Court has carefully considered the law, the facts in the record, and the

arguments and submissions of the parties and is prepared to rule. For the following reasons, the

motion is granted, and Plaintiff is given twenty-eight (28) days within which to file an amended

complaint.

I. Relevant Factual Background

This action arises from the alleged sexual harassment of Plaintiff’s minor son J.T. while he

was a high school student at the Southern University Laboratory School (“Southern Lab”). The

following factual allegations are taken from the Plaintiff’s Petition. (Doc. 1-2.) They are assumed

to be true for purposes of this motion. Thompson v. City of Waco, 764 F.3d 500, 502–03 (5th Cir.

2014).

J.T. attended Southern Lab during the 2020–21 school year. (See Doc. 1-2 at 2, ¶ 3.) After

receiving approval to graduate early, on September 2, 2020, another student added J.T. to the senior

class group text. (Id.) “Almost immediately” after joining this group text, J.T.’s classmates began

harassing and bullying him in the message thread. (Id.) According to the Petition, the other students

“sexually harass[ed] J.T. by sending derogatory remarks in reference to his sexual orientation.”

(Id.) Plaintiff alleges that this “ruthless cyber bullying continued until J.T. removed himself” from

the group text. (Id.)

On September 3, 2020, J.T. reported the harassment incident to Sherrard, Southern Lab’s

assistant principal. (Id. at ¶ 4.) Four days later, Sherrard informed J.T. that she spoke “with a

student involved in the sexual harassment and . . . made the [student’s] parents . . . aware of their

child’s involvement in the incident.” (Id.)

The next day, Plaintiff contacted Brister, Southern Lab’s director, to inquire about the

investigation. (Id. at ¶ 5.) Brister told Plaintiff that he “had not yet had a chance to investigate the

incident but would contact her once he had done so.” (Id.) Later that day, “Brister contacted Human

Resources and accused J.T. of instigating the harassment.” (Id.) Two days later, Brister admitted

to Plaintiff that he “dropped the ball” and insisted that she “submit written documentation” of

J.T.’s sexual harassment and bullying allegations. (Id. at ¶ 6.) That same day, after learning from

Sherrard that J.T. reported the harassment, one of the students involved in the incident “threatened

J.T.” (Id. at ¶ 7.)

On October 8, 2020, “a verbal altercation occurred between” J.T. and Tony Brown, a

Southern Lab teacher, during which Mr. Brown “cursed at J.T.” (Id. at ¶ 8.) Plaintiff alleges that

“[o]n this occasion, and in contrast to J.T.’s complaints,” Brister “acted immediately.” (Id.) On

October 12, 2020, Brister informed Plaintiff that J.T. was being sent home “until further notice”

and that J.T. was “denied all opportunities to participate in school activities, specifically including

those special activities for the senior class.” (Id. at 3, ¶ 9.) Plaintiff learned two days later that Mr.

Brown “had resumed teaching his normal classes” and “suffered no punishment,” despite cursing

at J.T. (Id. at ¶ 11.) Plaintiff filed a Title IX complaint against Southern that day for sexual

harassment and retaliation. (Id. at ¶ 12.)

Based on these events, Plaintiff filed the instant suit against Southern; Brister, individually

and in his official capacity as director of Southern Lab; and Sherrard, individually and in her

official capacity as assistant principal of Southern Lab. (See Doc. 1-2 at 1.) Plaintiff’s Petition

asserts the following claims: (1) sexual harassment in violation of Title IX, 20 U.S.C. § 1681 et

seq. (“Title IX”); (2) retaliation in violation of Title IX; (3) claims for violations of J.T.’s rights

under the First and Fourteenth Amendments of the U.S. Constitution pursuant to 42 U.S.C. § 1983

against Brister and Sherrard; and (4) claims for violations of J.T.’s rights to privacy and

confidentiality under Louisiana law against Sherrard. (Id. at 3–4.) Plaintiff seeks compensatory

damages, attorney’s fees, punitive damages, and all such other relief to which she is entitled. (Id.

at 4–5.) Defendants now move to dismiss all of Plaintiff’s claims pursuant to Federal Rule of Civil

Procedure 12(b)(6).

II. Rule 12(b)(6) Standard

“Federal pleading rules call for a ‘short and plain statement of the claim showing that the

pleader is entitled to relief,’ Fed. R. Civ. P. 8(a)(2); they do not countenance dismissal of a

complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v.

City of Shelby, 574 U.S. 10, 11 (2014) (citation omitted).

Interpreting Rule 8(a) of the Federal Rules of Civil Procedure, the Fifth Circuit has

explained:

The complaint (1) on its face (2) must contain enough factual matter (taken as true)

(3) to raise a reasonable hope or expectation (4) that discovery will reveal relevant

evidence of each element of a claim. “Asking for [such] plausible grounds to infer

[the element of a claim] does not impose a probability requirement at the pleading

stage; it simply calls for enough facts to raise a reasonable expectation that

discovery will reveal [that the elements of the claim existed].”

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007)).

Applying the above case law, the Western District of Louisiana has stated:

Therefore, while the court is not to give the “assumption of truth” to conclusions,

factual allegations remain so entitled. Once those factual allegations are identified,

drawing on the court's judicial experience and common sense, the analysis is

whether those facts, which need not be detailed or specific, allow “the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

[Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)]; Twombly, 55[0] U.S. at 556. This

analysis is not substantively different from that set forth in Lormand, supra, nor

does this jurisprudence foreclose the option that discovery must be undertaken in

order to raise relevant information to support an element of the claim. The standard,

under the specific language of Fed. R. Civ. P. 8(a)(2), remains that the defendant

be given adequate notice of the claim and the grounds upon which it is based. The

standard is met by the “reasonable inference” the court must make that, with or

without discovery, the facts set forth a plausible claim for relief under a particular

theory of law provided that there is a “reasonable expectation” that “discovery will

reveal relevant evidence of each element of the claim.” Lormand, 565 F.3d at 257;

Twombly, 55[0] U.S. at 556.

Diamond Servs. Corp. v. Oceanografia, S.A. De C.V., No. 10-00177, 2011 WL 938785, at *3

(W.D. La. Feb. 9, 2011) (citation omitted).

In deciding a Rule 12(b)(6) motion, all well-pleaded facts are taken as true and viewed in

the light most favorable to the plaintiff. Thompson v. City of Waco, 764 F.3d 500, 502–03 (5th Cir.

2014). The task of the Court is not to decide if the plaintiff will eventually be successful, but to

determine if a “legally cognizable claim” has been asserted. Id. at 503.

III. Discussion of Title IX Claims

A. Title IX Generally

Title IX provides that “[n]o person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be subjected to discrimination under

any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).

“Title IX is ‘enforceable through an implied private right of action,’ and ‘monetary damages are

available in the implied private right of action.’” Klocke v. Univ. of Tex. at Arlington, 938 F.3d

204, 209 (5th Cir. 2019) (quoting Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281

(1998)). “A plaintiff may obtain damages under Title IX ‘where the funding recipient engages in

intentional conduct that violates the clear terms of the statute.’” Id. at 209–10 (citing Davis v.

Monroe Cnty. Bd. of Educ., 526 U.S. 629, 642 (1999)). “The Supreme Court has ‘consistently

interpreted Title IX’s private cause of action broadly to encompass diverse forms of intentional

discrimination.’” Id. at 210 (citing Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183 (2005)).

“Thus, a school’s ‘deliberate indifference’ to a student’s claims of sexual harassment by a

classmate may amount to an intentional violation of Title IX.” Id. (citing Davis, 526 U.S. at 643–

46). Similarly, “retaliat[ion] against a person because he complains of sex discrimination”

constitutes intentional discrimination in violation of Title IX. Jackson, 544 U.S. at 174.

B. Student-on-Student Harassment

1. Parties’ Arguments

Defendants first argue that, to the extent Plaintiff’s Title IX claim arising from the

harassing conduct of Southern Lab’s students is cognizable under Supreme Court and Fifth Circuit

precedent, this claim should be dismissed because the Petition lacks the requisite factual

allegations to support such a claim. (Doc. 5-1 at 5.)

In response, Plaintiff maintains that both the Supreme Court and the Fifth Circuit have

recognized the existence of a private right of action against a school board for student-on-student

sexual harassment under Title IX. (Doc. 7 at 5 (citing Davis, 526 U.S. 629 (1999); Sanches v.

Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156 (5th Cir. 2011)). Plaintiff then argues

that each of the requisite elements set forth by the Fifth Circuit in Sanches for imposing liability

for student-on-student harassment are alleged against Southern Lab. (See Doc. 7 at 5–7 (citing

Sanches, 647 F.3d at 165).)1 Plaintiff asserts that Southern Lab was deliberately indifferent to

known sexual harassment of J.T. by other students. (Id. at 6.) In support of her deliberate

indifference claim, Plaintiff argues that, after J.T. and Plaintiff reported the harassment, Southern

Lab “took no action to remedy the situation,” “failed to investigate,” and admitted that it “dropped

the ball.” (Id.)

In reply, Defendants concede that Sanches is controlling authority for student-on-student

harassment claims under Title IX. (Doc. 10 at 3–4.) Defendants contend, however, that Sanches

underscores three major deficiencies in Plaintiff’s Petition. (Id. at 4.) First, “[P]laintiff has not

come close to showing sexual harassment much less—as Sanches and its progeny require—

harassment so severe, pervasive, and objectively unreasonable to deny J.T. access to [Southern

Lab’s] educational programs.” (Id.) Second, contrary to Plaintiff’s arguments, the Petition does

not demonstrate that Southern Lab responded to J.T.’s harassment complaint in a manner that was

“deliberately indifferent.” (See id. at 5–6.) Third, the Petition fails to allege that Southern Lab

1 The Court observes that, while the Petition alleges that “defendants” violated Title IX’s prohibition against “sex

discrimination/harassment,” (see Doc. 1-2 at 4, ¶ 15), Plaintiff’s Memorandum in Opposition focuses exclusively on

allegations pertaining to Southern in arguing against dismissal of her Title IX student-on-student harassment claim.

(See Doc. 7 at 5–7.) Thus, it is unclear whether Plaintiff intends to pursue Title IX harassment claims against each

named Defendant or only Southern.

exercised the requisite control over the harasser and the context in which the harassment occurred.

(Id. at 6 (citing Davis, 526 U.S. at 645–46).)

2. Applicable Law

The Supreme Court has recognized that “student-on-student sexual harassment, if

sufficiently severe, can . . . rise to the level of discrimination actionable under” Title IX. Davis,

526 U.S. at 650. A plaintiff suing a school district for student-on-student harassment under Title

IX must show that: “the district (1) had actual knowledge of the harassment, (2) the harasser was

under the district’s control, (3) the harassment was based on the victim’s sex, (4) the harassment

was ‘so severe, pervasive, and objectively offensive that it effectively bar[red] the victim’s access

to an educational opportunity or benefit,’ and (5) the district was deliberately indifferent to the

harassment.” Sanches, 647 F.3d at 165 (citing Davis, 526 U.S. at 650).

The parties apparently do not dispute the first and third elements of Plaintiff’s claim:

Defendants had actual knowledge of the alleged harassment and the harassment was based on

J.T.’s sex.2 The parties dispute the remaining elements, however, which the Court addresses below.

In sum, the Court finds that Plaintiff has not alleged sufficient facts to state a plausible claim that

the students who harassed J.T. were under Southern Lab’s control, that J.T. endured sexual

harassment that was severe and pervasive, or that Southern Lab acted with deliberate indifference

2 Whether the alleged harassment regarding J.T.’s sexual orientation was based on his sex is not contested in this case.

Still, the Court observes that in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), the Supreme Court held that Title

VII’s prohibition on discrimination “because of” an individual’s sex includes discrimination based on sexual

orientation. Additionally, in 2021, “President Biden issued an executive order declaring that his administration would

apply Bostock’s interpretation of Title VII to other statutes prohibiting sex discrimination” and “the Department of

Justice issued guidance specifically instructing federal agencies to apply Bostock’s definition of sex discrimination to

Title IX.” Franciscan Alliance, Inc. v. Becerra, 843 Fed. App’x. 662, 663 (5th Cir. 2021) (citing Exec. Order No.

13,988, 86 Fed. Reg. 7023 (Jan. 20, 2021); Pamela S. Karlan, Principal Deputy Assistant Att’y Gen., U.S. Dep’t of

Justice, C.R. Div., Memorandum re: Application of Bostock v. Clayton County to Title IX of the Education

Amendments of 1972 (Mar. 26, 2021)).

to the harassment. Accordingly, the Court will grant Defendants’ motion as to Plaintiff’s claim for

student-on-student harassment under Title IX.

3. Analysis

a. Harasser Under Southern Lab’s Control

The first disputed element is whether Plaintiff has sufficiently pled that J.T.’s harassers

were under Southern Lab’s control. See Sanches, 647 F.3d at 165. The Supreme Court has

explained that, because actionable harassment “must occur under the operations of a funding

recipient,” the harassment “must take place in a context subject to the school district’s control.”

Davis, 526 U.S. at 645 (internal quotation marks omitted). Student misconduct that “occurs during

school hours and on school grounds” is a context in which the funding recipient retains substantial

control. Id. at 646. Importantly, “in this setting the Board exercises significant control over the

harasser.” Id. Here, accepting the well-pleaded facts in the Petition as true, Plaintiff has not

plausibly alleged that Southern Lab exercised substantial control over the harasser in the context

in which the harassing conduct occurred. The Petition alleges that students sent derogatory remarks

concerning J.T.’s sexual orientation in a senior class group text. (Doc. 1-2 at 2, ¶ 3.) But the Petition

does not allege whether J.T. was subjected to this harassment on school grounds, during school

hours, or any other facts supporting a reasonable inference that Southern Lab had the requisite

control over the harassers. Thus, Plaintiff has failed to adequately allege this element of her

student-on-student harassment claim.

b. Severity of the Harassment

The second disputed element is whether Plaintiff has alleged that the harassment at issue

was so severe, pervasive, and objectively offensive that it effectively barred J.T.’s access to an

educational opportunity or benefit. See Sanches, 647 F.3d at 165. Defendants’ primary contention

as to this element is that Plaintiff has not shown that the harassment was severe, pervasive, and

objectively unreasonable. (See Doc. 10 at 1–2, 4 (referencing Sanches, 647 F.3d at 167).)

As the Fifth Circuit recognized in Sanches, “[w]hether conduct rises to the level of

actionable harassment ‘depends on a constellation of surrounding circumstances, expectations, and

relationships, including, but not limited to, the ages of the harasser and the victim and the number

of individuals involved.’” Sanches, 647 F.3d at 167 (quoting Davis, 526 U.S. at 651). The Fifth

Circuit further explained that “to be actionable, the harassment must be more than the sort of

teasing and bullying that generally takes place in schools; it must be ‘severe, pervasive, and

objectively unreasonable.’” Id. (citing Davis, 526 U.S. at 652).

The Petition in this case alleges that, upon joining the senior class group text, “students

began sexually harassing J.T. by sending derogatory remarks” regarding “his sexual orientation.”

(Doc. 1-2 at 2, ¶ 3.). This “ruthless cyber bulling continued until J.T. removed himself” from the

message thread, according to the Petition. (Id.) Plaintiff alleges that the harassment and bullying

ultimately resulted in J.T. being “denied all opportunities to participate in school activities,”

including “special activities for the senior class.” (Id. at ¶ 9.)

Accepting the Petition’s factual allegations as true and viewing them in the light most

favorable to Plaintiff, she has alleged that the conduct complained of effectively denied J.T.’s

access to an educational benefit. But Plaintiff’s general allegations that J.T. suffered “ruthless

cyber bullying” by his classmates, who sent “derogatory remarks” via text—without further detail

as to the nature of these remarks or the extent of bullying J.T. endured—do not rise to the level of

severe, pervasive, and objectively offensive harassment contemplated by Title IX. Accordingly,

Plaintiff has failed to plausibly allege that the sexual harassment was so severe, pervasive, and

objectively offensive that it effectively barred J.T.’s access to an educational opportunity or

benefit.

c. Deliberate Indifference

The third disputed element is whether Southern Lab was deliberately indifferent to J.T.’s

sexual harassment complaint. See Sanches, 647 F.3d at 165. As explained by the Fifth Circuit:

“Deliberate indifference is an extremely high standard to meet. Actions and decisions by officials

that are merely inept, erroneous, ineffective, or negligent do not amount to deliberate indifference.

Rather, a school district’s response to the harassment or lack thereof [must be] clearly unreasonable

in light of the known circumstances.” Ruvalcaba v. Angleton Indep. Sch. Dist., No. 20-40491, 2022

WL 340592, at *5 (5th Cir. Feb. 4, 2022) (internal citations and quotation marks omitted).

Furthermore, “[s]chools need not ‘remedy the harassment or accede to a parent’s remedial

demands,’ and ‘courts should refrain from second-guessing the disciplinary decisions made by

school administrators.” I.L. v. Houston Indep. Sch. Dist., 776 Fed. App’x 839, 842 (5th Cir. 2019)

(quoting Sanches, 647 F.3d at 167–68).

Here, Plaintiff argues that Southern Lab was deliberately indifferent because Southern Lab

failed to respond to J.T.’s harassment complaint with proper remedial action and failed to

adequately investigate his allegations. (See Doc. 7 at 6.) In essence, Plaintiff contends that

Southern Lab was “deliberately indifferent by taking no action.” (Id.) Yet the Petition suggests

that Southern Lab took at least some action, through its administrators, in response to J.T.’s

complaint. For instance, four days after J.T. reported the incident to Assistant Principal Sherrard,

she told J.T. that she spoke with a student involved in the harassment and informed the student’s

parents of the incident. (Doc. 1-2 at 2, ¶ 4.) Additionally, though on September 8, 2020, Director

Brister told Plaintiff that he had not yet investigated the incident, later that evening, “Brister

contacted Human Resources and accused J.T. of instigating the harassment,” according to the

Petition. (Id. at ¶ 5.) Furthermore, on September 10, 2020, Brister told Plaintiff he “dropped the

ball” and “then insisted” that Plaintiff “submit written documentation” of the harassment and

bullying allegations. (Id. at ¶ 6.)

Granted, Defendants likely could have handled their investigative response to J.T.’s

harassment allegations better and arguably, their response might even be characterized as “inept,

erroneous, ineffective, or negligent.” See Ruvalcaba, 2022 WL 340592, at *5. But Fifth Circuit

precedent “makes it clear that negligent delays, botched investigations of complaints due to the

ineptitude of investigators, or responses that most reasonable persons could have improved upon

do not equate to deliberate indifference.” I.F. v. Lewisville Indep. Sch. Dist., 915 F.3d 360, 369

(5th Cir. 2019). Accepting the facts alleged in the Petition and viewing them in the light most

favorable to Plaintiff, she has not established that Defendants’ response to J.T.’s harassment

complaint was clearly unreasonable in light of the known circumstances. See Sanches, 647 F.3d at

167 (citing Davis, 526 U.S. at 648). Plaintiff has therefore failed to sufficiently allege the deliberate

indifference element of her student-on-student harassment claim. Accordingly, the Court will grant

Defendants’ motion to dismiss Plaintiff’s Title IX harassment claim.

C. Retaliation

1. Parties’ Arguments

Defendants argue that Plaintiff’s Title IX retaliation claim should be dismissed because the

Petition does not plausibly support Plaintiff’s claim that Defendants retaliated against J.T. for

reporting his peers’ misconduct. (Doc. 5-1 at 6–7.)

In response, Plaintiff argues that she has sufficiently alleged a Title IX claim for retaliating

against J.T. for his complaints of sexual harassment in September 2020. (Doc. 7 at 8–9.) To support

the causation element of her claim, Plaintiff points to the timing of the “retaliatory discipline,”

which occurred within one “month of J.T.’s protected activities on September 3, 2020 and

September 8, 2020.” (Id. at 8.) Plaintiff contends that “[t]his is sufficient causal connection.” (Id.)

In reply, Defendants maintains that Plaintiff’s Petition “offers no facts suggesting a link

between a complaint about text messages in early September and the consequences of J.T.’s ‘verbal

altercation’ with his teacher weeks later.” (Doc. 10 at 7.) Defendants re-urge that the Petition lacks

sufficient factual support to give rise to a reasonable inference of retaliation, and that this claim

should be dismissed on that basis. (See id. at 6–7.)

2. Applicable Law

The Supreme Court has held that Title IX’s private right of action encompasses claims of

retaliation “where the funding recipient retaliates against an individual because he has complained

about sex discrimination.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 171 (2005). “To

establish a prima facie case of retaliation under Title IX, a plaintiff must show that (1) he engaged

in a protected activity; (2) he was subjected to an adverse employment action, and (3) ‘a causal

link exists between the protected activity and the adverse employment action.’” Trudeau v. Univ.

of N. Tex., By and Through its Bd. of Regents, 861 Fed. App’x. 604, 607–08 (5th Cir. 2021) (per

curiam) (quoting Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014)); see also Collins v.

Jackson Pub. Sch. Dist., 609 F. App’x 792, 795 (5th Cir. 2015) (per curiam) (“The language of the

anti-retaliation provision of Title IX and that of Title VII are similar and ‘should be accorded a

similar interpretation.’” (quoting Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 252 n.18 (5th

Cir. 1997))).

3. Analysis

Defendants primarily attack the third element of Plaintiff’s retaliation claim: the causal link

between J.T.’s harassment complaint and the adverse action. (See Doc. 10 at 6–7.) “In the

comparable context of Title VII retaliation claims, the Supreme Court has applied a but-for

causation standard.” Trudeau, 861 Fed. App’x 604, 608 (5th Cir. 2021) (citing Univ. of Tex. Sw.

Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)). Accordingly, Plaintiff must plead that J.T.’s

harassment complaint “was a but-for cause of his punishment.” See id.

Plaintiff attempts to establish the causation element of her retaliation claim by pointing to

the timing of the protected activity and the adverse action. (See Doc. 7 at 8.) But the Court finds

these assertions insufficient to support a finding of the requisite but-for causation. The Fifth Circuit

has held that, “to establish causation on retaliation claims, ‘temporal proximity must be very

close.’” Collins, 609 Fed. App’x. at 796 (citing Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d

165, 171 (5th Cir. 2014)). Here, “very close” temporal proximity is lacking because J.T. was

disciplined for the verbal altercation with his teacher more than a month after Defendants were

notified of J.T.’s harassment complaint. Without more, even accepting the Petition’s well-pleaded

facts as true, Plaintiff has failed to allege that Defendants’ actions were retaliatory. Accordingly,

the Court will grant Defendants’ motion to dismiss Plaintiff’s Title IX retaliation claim.

IV. Discussion of Section 1983 Official Capacity Claims

A. Parties’ Arguments

Defendants argue that Plaintiff’s claims against Brister and Sherrard in their official

capacities should be dismissed because they are not “persons” for purposes of a Section 1983

claim. (Doc. 5-1 at 7.) In response, Plaintiff represents that “Brister and Sherrard may be liable in

their official capacities even for a ‘single decision’ which violates plaintiff’s civil rights,”

according to Supreme Court case law. (Doc. 7 at 12 (citing Monell v. Dep’t of Soc. Serv., 436 U.S.

658 (1978); Owen v. City of Indep., 445 U.S. 622 (1980); Newport v. Fact Concerts Inc., 453 U.S.

247 (1981); Pembaur v. City of Cincinnati, 475 U.S. 469 (1986)). In reply, Defendants dispute

Plaintiff’s reliance on Monell as inapplicable because “Monell concerns municipal liability.” (Doc.

10 at 9.) Defendants also assert that “Southern is an arm of the State.” (Id.) Since the State is not

a “person,” Defendants reiterate that Brister and Sherrard, in their official capacities, are not

“persons” for Section 1983 purposes. (Id.)

B. Applicable Law and Analysis

“Section 1983 provides a private right of action for damages to individuals who are

deprived of ‘any rights, privileges, or immunities’ protected by the Constitution or federal law by

any ‘person’ acting under the color of state law.” Williams v. Louisiana, CV No. 17-453-JWD-

EWD, 2019 WL 1003645, at *4 (M.D. La. Feb. 28, 2019) (internal quotations omitted) (quoting

Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 821 (5th Cir. 2007)). “The Supreme Court

has held that a State is not a ‘person’ against whom a § 1983 claim for money damages might be

asserted.” Id. (internal quotations omitted) (quoting Med. RX/Sys., P.L.L.C. v. Tex. Dep’t of State

Health Servs., 633 F. App’x 607, 610 (5th Cir. 2016)). “This rule extends to ‘arms of the state,’

and to a state’s ‘officials acting in their official capacities.’” Id. (internal citations and quotations

omitted).

Southern University’s Board of Supervisors is considered an arm of the State of Louisiana

and, therefore, is not a “person” under Section 1983. See Richardson v. Southern Univ., 118 F.3d

450, 456 (5th Cir. 1997). By extension, Brister and Sherrard, as state officials acting in their official

capacities, are not “persons” for Section 1983 purposes. Accordingly, the Court will grant

Defendants’ motion to dismiss Plaintiff’s Section 1983 official capacity claims against Brister and

Sherrard.

V. Discussion of Section 1983 Individual Capacity Claims

Defendants raise the issue of qualified immunity as to Plaintiff’s Section 1983 claims

against Brister and Sherrard in their individual capacities for violations of J.T.’s rights under the

First and Fourteenth Amendments. (See Doc. 5-1 at 7–11.) The Court addresses each of these

claims in turn.

A. Qualified Immunity

“Qualified immunity protects government officials from civil liability in their individual

capacity to the extent that their conduct does not violate clearly established statutory or

constitutional rights.” Garcia v. Blevins, 957 F.3d 596, 600 (5th Cir. 2020), cert denied, 141 S. Ct.

1058 (2021) (quoting Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016)). “It shields ‘all

but the plainly incompetent or those who knowingly violate the law.’” Id. (quoting Thompson v.

Mercer, 762 F3d 433, 437 (5th Cir. 2014)). To rebut a defendant’s qualified immunity defense,

the plaintiff must demonstrate “(1) that [the defendant] violated a federal statutory or constitutional

right and (2) that the unlawfulness of the conduct was ‘clearly established at the time.’” Cloud v.

Stone, 993 F.3d 379, 383 (5th Cir. 2021) (quoting Rich v. Palko, 920 F.3d 288, 294 (5th Cir.

2019)). “[The Court] can analyze the prongs in either order or resolve the case on a single prong.”

Id. (quoting Garcia, 957 F.3d at 600).

Regarding the second prong, Plaintiff “bear[s] the burden of showing that the right was

clearly established.” Garcia, 957 F.3d at 600 (citing Cass, 814 F.3d at 733). “To be clearly

established, a right must be ‘sufficiently clear that every reasonable official would have understood

that what he is doing violates that right.’” Id. at 600–01 (quoting Mullenix v. Luna, 577 U.S. 7

(2015) (per curiam)). The Court “cannot ‘define clearly established law at a high level of

generality.’” Id. at 601 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). “Rather, the

question must be ‘frame[d] . . . with specificity and granularity.’” Id. (quoting Morrow v.

Meachum, 917 F.3d 870, 874–75 (5th Cir. 2019)). Courts “do not require plaintiffs to identify a

case ‘directly on point,’ but the case law must ‘place the statutory or constitutional question beyond

debate.’” Id. at 600–01 (internal brackets omitted) (quoting Morgan v. Swanson, 659 F.3d 359,

371 (5th Cir. 2011)). “Our inquiry ‘must be taken in light of the specific context of the case, not

as a broad general proposition.’” Id. at 601 (quoting Mullenix, 136 S. Ct. at 308).

B. Fourteenth Amendment Claim

1. Parties’ Arguments

Defendants argue that Plaintiff’s Section 1983 equal protection claim against Sherrard and

Brister should be dismissed because Plaintiff’s Petition “does not articulate how J.T.’s right to

equal protection was violated, particularly how Mr. Brister or Ms. Sherrard treated J.T. differently

from any similarly situated individual,” as it required to state a class-of-one equal-protection claim.

(Doc. 5-1 at 9–10.) Defendants assert that Plaintiff’s equal protection claim fails for the additional

reason that she has not overcome Brister or Sherrard’s qualified immunity. (Id. at 10.)

In response, Plaintiff argues that she has supported the differential treatment component of

her equal protection claim by asserting that Brister and Sherrard “treated J.T.’s sexual harassment

complaints differently than other complaints of improper conduct,” which denied J.T. equal

protection of the law. (Doc. 7 at 11.)

In reply, Defendants reiterate that Plaintiff has failed to plausibly allege that Defendants

treated similarly situated students differently without a rational basis. (Doc. 10 at 8.) Defendants

also maintain that Brister and Sherrard are entitled to qualified immunity as to this claim “because

there was no ‘clearly established’ right on these specific facts.” (Id.)

2. Applicable Law

“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall

‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a

direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432, 439 (1985) (quoting U.S. Const. amend. XIV, § 1). The Supreme Court

has recognized equal protection claims based on a “class of one.” See Vill. of Willowbrook v. Olech,

528 U.S. 562 (2000). To state a “class of one” equal protection claim, “the plaintiff must establish

(1) he was ‘intentionally treated differently from others similarly situated’ and (2) there was no

rational basis for any such difference.” Wilson v. Birnberg, 667 F.3d 591, 599 (5th Cir. 2012)

(citing Whiting v. Univ. of S. Miss., 51 F.3d 339, 348 (5th Cir. 2006)).

3. Analysis

In support of her equal protection claim based on a class of one, Plaintiff argues that Brister

and Sherrard “treated J.T.’s sexual harassment complaints differently than other complaints of

improper conduct”; namely, J.T.’s verbal altercation with Mr. Brown. (See Doc. 7 at 11.) Contrary

to Plaintiff’s assertion, however, the Petition does not “clearly allege[] that defendants Sherrard

and Brister took no action against the [Southern] Lab students for sexually harassing J.T.”

(Compare Doc. 7 at 11, with Doc. 1-2 at 1–5.) In fact, the Petition contains no allegations that the

individual Defendants treated other, similarly situated students differently. Nor does the Petition

allege that there was no rational basis for the disciplinary action taken against J.T. for the verbal

altercation with his teacher. Moreover, as the Fifth Circuit recently noted, “the fact that school

officials may not have adequately responded to a student’s complaints does not itself rise to the

level of an equal protection violation.” Ruvalcaba v. Angleton Indep. Sch. Dist., No. 20-40491,

2022 WL 340592, at *3 (5th Cir. Feb. 4, 2022) (internal quotation marks and brackets omitted)

(quoting Priester v. Lowndes Cty., 354 F.3d 414, 424 (5th Cir. 2004)). As a result, Plaintiff has

failed to state a violation of J.T.’s rights under the Equal Protection Clause of the Fourteenth

Amendment. Accordingly, the Court will grant Defendants’ motion to dismiss Plaintiff’s Section

1983 equal protection claims against Brister and Sherrard.

C. First Amendment

1. Parties’ Arguments

Defendants argue that Plaintiff’s First Amendment Section 1983 claims against Brister and

Sherrard should be dismissed because (1) the Petition does not allege facts supporting these claims

and (2) even if it did, “the plaintiff cannot identify a controlling case saying that a specific action

taken by Mr. Brister or Ms. Sherrard violated a clearly established right.” (Doc. 5-1 at 11.) As a

result, Brister and Sherrard are entitled to qualified immunity as to these claims. (Id.; see also Doc.

10 at 8.)

In response, Plaintiff maintains that Sherrard and Brister violated J.T.’s First Amendment

rights by retaliating against him for reporting sexual harassment. (Doc. 7 at 9–10.) Plaintiff further

contends that Defendants are not entitled to qualified immunity because it was clearly established

at the time that the First Amendment prohibits adverse government action against an individual

because of their exercise of First Amendment freedoms. (Id. at 10.)

2. Applicable Law

To establish a First Amendment retaliation claim, “plaintiffs must show that (1) they were

engaged in constitutionally protected activity, (2) the defendants’ actions caused them to suffer an

injury that would chill a person of ordinary firmness from continuing to engage in that activity,

and (3) the defendants’ adverse actions were substantially motivated against the plaintiffs’ exercise

of constitutionally protected conduct.” Frampton v. City of Baton Rouge/Parish of E. Baton Rouge,

No. 21-CV-362-JWD-SDJ, 2022 WL 90238, at *14 (M.D. La. Jan. 7, 2022) (internal brackets

omitted) (quoting Keenan v. Tejada, 290 F.3d 252, 258 (5th Cir. 2002)). As the Fifth Circuit has

observed:

It is axiomatic that the First Amendment prohibits not only direct limitations on

speech but also adverse government action against an individual because of her

exercise of First Amendment freedoms . . . . It has likewise long been established

that students do not shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate.

Jackson v. Ladner, 626 Fed. App’x 80, 88 (5th Cir. 2015) (internal quotations and citations

omitted) (citing Colson v. Grohman, 174 F.3d 498, 508 (5th Cir. 1999); Tinker v. Des Moines

Indep. Cnty. Sch. Dist., 393 U.S. 503, 506 (1969)).

3. Analysis

“When considering a defendant’s entitlement to qualified immunity, [the Court] must ask

whether the law so clearly and unambiguously prohibited his conduct that ‘every reasonable

official would understand that what he is doing violates [the law].’” McLin v. Ard, 866 F.3d 682,

695–96 (5th Cir. 2017) (quoting Morgan, 659 F.3d at 371). “To answer that question in the

affirmative, we must be able to point to controlling authority—or a robust consensus of persuasive

authority—that defines the contours of the right in question with a high degree of particularity.”

Id. at 696 (quoting Morgan, 659 F.3d at 371–72). “Where no controlling authority specifically

prohibits a defendant’s conduct, and when the federal circuit courts are split on the issue, the law

cannot be said to be clearly established.” Id. (quoting Morgan, 659 F.3d at 372).

Even if the allegations of Plaintiff’s Petition sufficiently established that Brister and

Sherrard’s conduct was in violation of J.T.’s First Amendment rights, the Court still concludes that

Defendants are entitled to qualified immunity on Plaintiff’s Section 1983 claim under the factual

circumstances, as alleged in the Petition. As previously noted, Plaintiff has the burden of

establishing a violation of clearly established law. See Garcia, 957 F.3d at 600 (citing Cass, 814

F.3d at 733). Here, Plaintiff has not pointed to “controlling authority—or a robust consensus of

persuasive authority—that defines the contours of the right in question with a high degree of

particularity.” McLin, 866 F.3d at 696 (citation omitted). Consequently, the Court does not find

that the law “so clearly and unambiguously prohibited” Brister and Sherrard’s conduct that every

reasonable school official would understand that their actions—i.e., the disciplinary actions taken

against J.T. following his verbal altercation with a teacher—violated the First Amendment. See id.

at 695 (quoting Morgan, 659 F.3d at 371). Accordingly, the Court concludes that Sherrard and

Brister are entitled to qualified immunity and, for that reason, will grant Defendants’ motion to

dismiss Plaintiff’s First Amendment claims under Section 1983.

VI. Discussion of State Law Claims

Having dismissed all of Plaintiff’s federal claims, and considering the factors set forth in

28 U.S.C. § 1367(c), as well as “the common law factors of judicial economy, convenience,

fairness, and comity,” the Court declines to exercise supplemental jurisdiction over the remaining

pendent state law claims, consistent with the Fifth Circuit’s general rule. See Parker & Parsley

Petroleum Co. v. Dress Indus., 972 F.2d 580, 585 (5th Cir. 1992); Conway v. Louisiana Through

DPS&C, No. 18-33, 2021 WL 357357, at *1 (M.D. La. Feb. 2, 2021) (deGravelles J.) (citing

Enochs v. Lampasas Cty., 641 F.3d 155, 159 (5th Cir. 2011)). Plaintiff’s claims against Sherrard

based on violations of Louisiana law are therefore dismissed without prejudice.

VII. Leave to Amend

“A court ordinarily should not dismiss the complaint except after affording every

opportunity to the plaintiff to state a claim upon which relief might be granted.” JMCB, LLC v.

Bd. of Com. & Indus., No. 17-75, 2018 WL 11319077, at *6 (M.D. La. Aug. 23, 2018) (quoting

Byrd v. Bates, 220 F.2d 480, 482 (5th Cir. 1955)). The Fifth Circuit has further stated:

In view of the consequences of dismissal on the complaint alone, and the pull to

decide cases on the merits rather than on the sufficiency of pleadings, district courts

often afford plaintiffs at least one opportunity to cure pleading deficiencies before

dismissing a case, unless it is clear that the defects are incurable or the plaintiffs

advise the court that they are unwilling or unable to amend in a manner that will

avoid dismissal.

Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002);

see also 5B Charles A. Wright, Arthur R. Miller, et al., Federal Practice and Procedure § 1357

(3d ed. 2016) (“A wise judicial practice (and one that is commonly followed) would be to allow at

least one amendment regardless of how unpromising the initial pleading appears because except

in unusual circumstances it is unlikely that the district court will be able to determine conclusively

on the face of a defective pleading whether the plaintiff actually can state a claim for relief.”).

Here, Plaintiff asks for an opportunity to amend her Petition in the event the Court finds that there

are deficiencies. (See Doc. 7 at 14). The Court will therefore act in accordance with this “wise

judicial practice” and grant Plaintiff leave to amend the operative complaint to state viable claims.

VIII. Conclusion

Accordingly,

IT IS ORDERED that Defendants’ Motion to Dismiss Plaintiff’s Claims (Doc. 5) filed by

Defendants is GRANTED, and Plaintiff’s claims are DISMISSED WITHOUT PREJUDICE.

Plaintiff shall have twenty-eight (28) days in which to amend the operative complaint to cure the

above deficiencies. Failure to do so will result in dismissal of her claims with prejudice.

Signed in Baton Rouge, Louisiana, on March 23, 2022.

S

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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