FOX v. CHAPEL HILL-CARRBORO CITY SCHOOLS BOARD OF EDUCATION

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

REBECCA FOX, as Guardian ad )

Litem for R.S., a minor child )

and individually, )

)

Plaintiff, )

)

v. )

) 1:22-cv-952

CHAPEL HILL-CARRBORO CITY )

SCHOOLS BOARD OF EDUCATION; )

MISTI WILLIAMS, in her )

individual and official )

capacity; EMILY BIVINS, in her )

individual and official )

capacity; SUZETH GONZALEZ, in )

her individual and official )

capacity; and QUAMESHA WHITTED- )

MILLER, in her individual and )

official capacity, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is Defendants’ Motion to Dismiss and

Answer to Plaintiff’s Third Amended Complaint, (Doc. 76),1

Defendants’ Motion for Summary Judgment, (Doc. 82), Plaintiffs’

Motion in Limine, (Doc. 114), Defendants’ Motion in Limine to

Bifurcate, (Doc. 117), Defendants’ Motion in Limine to Exclude

1 This motion will be denied, as it is unaccompanied by a

brief and therefore does not comply with Local Civil Rule

7.3(a). L.R. 7.3(a).

Certain Evidence, (Doc. 120), and Plaintiffs’ Motion to Redact

Information and Substitute Filed Documents, (Doc. 138).

For the reasons stated herein, Defendants’ Motion to

Dismiss and Answer to Plaintiff’s Third Amended Complaint will

be denied, Defendants’ Motion for Summary Judgment will be

granted, all three motions in limine will be denied as moot, and

Plaintiffs’ Motion to Redact Information and Substitute Filed

Documents will be granted.

I. FACTUAL BACKGROUND

In the fall of 2019, Plaintiff R.S. was a five-year-old

kindergarten student at Frank Porter Graham Bilingue Elementary

School (“FPG”), which is part of the Chapel Hill-Carrboro City

School system. Her mother, Plaintiff Fox, worked at the school

as a speech language pathologist. (Defs.’ Ex. 4, Dep. of Rebecca

Fox (“Fox Dep.”) (Doc. 85-4) at 27.)2 Plaintiffs’ claims derive

from R.S.’s report that her kindergarten classmate

inappropriately touched her.

On the evening of Friday, November 1, 2019, Fox noticed

that R.S.’s vulva was “red and raw.” (Pls.’ Ex. 9, Fox

Declaration (“Fox Decl.”) (Doc. 94-9) at 2.) Fox asked R.S. if

2 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

anyone had touched her on her private parts and R.S. responded

that the day prior, October 31, her kindergarten classmate,

Minor Classmate (“M.C.”), had “put his hand on [her] panties and

moved his hand back and forth and back and forth.” (Id. at 2–3.)3

Additionally, R.S. relayed that M.C. “wanted to do it again” the

next day, November 1, at recess, but her friends helped her hide

from him. (See Pls.’ Ex. 30, E-mail chain (Doc. 94-30) at 1.)

R.S.’s father was also present for the disclosure. (Pls.’ Ex. 8,

(Doc. 94-8) at 2.)

At 7:44 p.m., after receiving R.S.’s report, Fox sent an e-

mail to 1) R.S.’s kindergarten teacher, Selene Paque, 2) her

teacher’s assistant (“TA”), Madeline Maldonado, 3) the school’s

guidance counselor, Barbie Garayua-Tudryn, 4) the school’s

assistant principal, Karen Galassi-Ferrer, and 5) the school’s

3 The evidence is conflicting as to where this incident

occurred. R.S.’s mother and R.S.’s therapist relay that R.S.

told them it occurred on the playground at recess. (See Pls.’

Ex. 9, Fox Decl. (Doc. 94-9) at 3 (“R.S. told my husband and me

that Minor Classmate had done this to her at recess . . . .”));

Pls.’ Ex. 5, Aff. of Treating Clinician Nancy L. Berson, LCSW

(“Berson Aff.”) (Doc. 94-5) at 3 (“Per R.S., this ‘particular’

incident occurred on the school playground.”).) R.S.’s mother,

in her email to school officials regarding R.S.’s report,

stated: “I think this was at recess.” (Pls.’ Ex. 30, E-mail

chain (Doc. 94-30) at 1.) But in an audio recording of the

school principal’s interview of R.S., R.S. states that the

incident occurred in the classroom. (See R.S. Initial Meeting –

Full (Doc. 105) at 07:44–07:50.)

principal, Emily Bivins. (Pls.’ Ex. 30, E-mail chain (Doc. 94-

30) at 1.) Fox explained,

Tonight [R.S.] told me that her classmate [M.C.] touched

her on the vulva. “He came up to me and put his hand on

my panties and moved his hand back and forth and back

and forth.” She said this happened yesterday and that

today “he wanted to do it again but [A.R.] helped me

find a hiding place.” I think this was at recess. On

other occasions she has said he has tickled her under

her arms and wouldn’t stop and that she’s told the

teacher. She said she did not want to tell the teacher

about this because “it’s private,” and she also seemed

embarrassed and said that she had not wanted to tell me.

(Id.)

Paque responded at 8:11 p.m., acknowledging that “it is

challenging to keep an eye on all students interactions” and

suggesting a “safe touch conversation” for the children and an

“e-mail to all parents to help me have a conversation with their

children about safe touches.” (Id.) At 8:41 p.m., Fox responded,

agreeing that a class-wide conversation “was a good idea,” but

expressing her concern about R.S.’s safety as she “appears to

have been physically harmed by this.” (Id. at 2.) Fox also

expressed that she “would like to know what the school’s

protocols are for safety during recess, as [R.S.] indicates this

may have happened on more than one occasion.” (Id.)4

On Sunday, November 3, Fox took R.S. to the doctor. (Pls.’

Ex. 9, Fox Decl. (Doc. 94-9) at 4.) R.S. told the doctor that

M.C. had touched her “one, two, three, four, five times.” (Id.)

According to Fox, R.S. showed the doctor how M.C. touched her,

and it was “more sexual” than Fox expected. (Id.; see also

Defs.’ Ex. 4, Fox Dep. (Doc. 85-4) at 98–99.)5

Fox did not receive any communications from school

officials on Saturday, November 2, or Sunday, November 3. (See

Pls.’ Ex. 9, Fox Decl. (Doc. 94-9) at 4.)

A. Monday, November 4, 2019

On Monday, November 4, at 6:36 a.m., Fox replied-all to the

email she had sent on Friday evening, stating “I hope we can all

meet about this soon and that the silence in response to this is

4 Although Fox noted in this e-mail that “this may have

happened on more than one occasion,” she stated in her

deposition that “as far as I knew then and as far as I know now

he only touched her on that one occasion, October 31st, 2019.”

(Defs.’ Ex. 4, Deposition of Rebecca Fox (“Fox Dep.”) (Doc. 85-

4) at 136–37.)

5 Fox stated in her deposition and in her declaration that

the doctor verbally conveyed to her that there was bruising on

R.S.’s vulva. (Pls.’ Ex. 9, Fox Decl. (Doc. 94-9) at 4; Defs.’

Ex. 4, Fox Dep. (Doc. 85-4) at 241.) However, in her deposition,

Fox acknowledged that the doctor’s notes from the appointment

convey that the exam was “normal,” with “[n]o bruising, swelling

or redness,” (Defs.’ Ex. 4, Fox. Dep. (Doc. 85-4) at 373), and

Fox stated that she “[did not] remember seeing bruising,” (id.

at 375).

because you haven’t seen these emails. Presuming that’s the

case, here’s a Monday morning ‘bump.’ [R.S.] will be absent

today and until there’s a plan in place for her safety.” (Pls.’

Ex. 30, E-mail chain (Doc. 94-30) at 2.) At 7:37 a.m., FPG

Principal, Emily Bivins, responded, stating

I am very sorry this has happened to [R.S.]. In

situations like this, we investigate by interviewing

both students, the teachers and any other students

involved. Once we have all the information, we can move

forward with a plan for instruction and safety. I would

like to have [R.S.] here to be able to begin that

process.

(Id.) Bivins and Fox agreed that Bivins would interview R.S. at

9:00 a.m. and Bivins advised the interview would “take about 10

minutes at most.” (Id. at 3.) At 8:04 a.m., FPG counselor,

Barbie Garayua-Tudryn, responded to Fox’s initial e-mail,

stating that she would be “available to assist in any way I can

to ensure everyone’s emotional and physical safety.” (Id.)

That Monday, November 4, 2019, it is undisputed that Bivins

took the following actions.6 Bivins communicated with R.S.’s

teacher, Paque, who conveyed that she had received reports about

tapping and tickling on the carpet, and that on November 1,

2019, she had “called [M.C.’s] parents letting them know that he

was going to fill out a behavior journal,7 but it was not about

[R.S.] at all.” (Pls.’ Ex. 30, E-mail chain (Doc. 94-30) at 4.)

Bivins also spoke with Paque’s TA, Maldonado, who reported

having seen M.C. and another child, C.K., tickling, but had “not

seen inappropriate touching in private parts.” (Pls.’ Ex. 16,

Investigation Notes (Doc. 94-16) at 2.)

6 The exact order in which Bivins took these actions is not

entirely clear. Bivins stated in her deposition that she spoke

with “the teacher and the assistant” first, “then [Fox] and her

husband came in with [R.S.], and [R.S.] was the first student I

interviewed.” (Defs.’ Ex. 1, Deposition of Emily Bivins (“Bivins

Dep.”) (Doc. 85-1) at 98.) Plaintiffs dispute the order as

outlined by Bivins, citing her investigation notes, which are

ordered differently, with M.C.’s interview notes at the top of

the page under a notation of “8:40 a.m.” (See Pls.’ Resp. (Doc.

94) at 3; Pls.’ Ex. 16, Investigation Notes (Doc. 94-16) at 1.)

This dispute regarding the order of interviews is not material

to Plaintiffs’ claims.

7 According to Bivins, “[a] behavior journal is an

opportunity for a student to identify the school rule that was

broken, and then reflect on that behavior and how it might make

someone else feel or what it might have done to someone else,

and then what they might do differently the next time. And then

the teacher confers with the student after they independently

complete the behavior journal.” (Defs.’ Ex. 1, Bivins Dep. (Doc.

85-1) at 88.)

At 9:00 a.m., Bivins interviewed R.S., who was accompanied

by her parents. (Defs.’ Ex. 1, Bivins Dep. (Doc. 85-1) at 98;

Pls.’ Ex. 16, Investigation Notes (Doc. 94-16) at 1.) Fox

recorded this interview without Defendant Bivins’ knowledge.

(Defs.’ Ex. 4, Fox Dep. (Doc. 85-4) at 229–30.) During the

interview, R.S. relayed that M.C. “touch[ed] her bottom” “five

times” in the classroom during the class’s “Day of the Dead”

celebration, that she “told the teachers,” and that he also “did

it on another day.” (See R.S. Initial Meeting – Full (Doc.

105).) R.S. also disclosed that her friends helped her hide from

M.C. during recess. (R.S. Initial Meeting – Full (Doc. 105) at

13:16–13:26.) During the interview, Bivins asked R.S. if M.C.

has “ever touched you or tickled [her] before,” if R.S. “like[s]

tickles,” and if she “sometimes . . . laugh[s] when [she] gets

tickles.” (Id. at 08:29–09:28.) Bivins also told R.S. that

nobody should ever touch anybody in their private parts.

Or tickle and touch in a way that makes you

uncomfortable. That’s against the rules and it’s not

okay. And there are consequences when that happens. . .

. That means that kids get into trouble when they’re

touching or tickling and people say stop and they don’t

stop. Because when somebody says stop, it always means

stop. It’s never okay for somebody to keep doing

something when somebody says stop, I don’t like that.

(Id. at 09:49–10:19.) Bivins praised R.S. for telling adults

what happened, saying,

you are super brave to tell me all these things that

have happened to you. This is pretty amazing that you

are this brave and can tell all these things. I am very

proud of you, just like your mommy and daddy are. [R.S.],

it’s never okay for someone to touch you in a way that

doesn’t make you feel comfortable whether that’s

tickling, or even holding your hand, or sitting too close

to you and anytime you use your words or use your body

to say get away, I don’t like that, then people have to

respect that. And you want them to stay away when they’re

doing things that make you uncomfortable.

(Id. at 12:11–12:44.)

Bivins also asked R.S., “what can we do to make you feel

better about being in class with [M.C.] and being on the

playground with [M.C.],” to which R.S. responded, “how about we

tell him that you can’t touch private parts anymore?” (Id. at

14:12–14:31.) R.S. also said that the grown-ups sit and talk to

each other at recess and “[i]t would be better if there was

[grown-ups] all around the park to watch everywhere on the

park.” (Id. at 15:19–16:02.) In response, Bivins explained that

“their job is to make sure they’re watching the kids. So we have

to make sure they’re watching the kids too. And sounds like they

need to be in different parts of the playground to be able to

watch better.” (Id. at 16:05–16:15.) Bivins then asked R.S. how

her TA would be able to recognize when R.S. was playing a “chase

fun game” versus an “uncomfortable game,” to which R.S.

responded that she would “go and tell her if it was a fun game

or not a fun game.” (Id. at 16:18–16:51.) Bivins also reminded

R.S. of the names of several grown-ups who could help her if she

ever felt uncomfortable, including Paque, Maldonado, “Ms.

Tatiana,” “Ms. Raquel,” “Senor Luis,” and Ms. Barbie [Garayua-

Tudryn], Nurse Anderson, and her mom. (Id. at 17:10–18:19.)

Bivins also interviewed M.C., who admitted to touching his

friends, including R.S. (See Defs.’ Ex. 1, Bivins Dep. (Doc. 85-

1) at 100–01; Pls.’ Ex. 16, Investigation Notes (Doc. 94-16) at

1.)8 M.C. also conveyed that sometimes he touches and tickles his

friend, K.G., at the park at recess. (Pls.’ Ex. 16,

Investigation Notes (Doc. 94-16) at 1.) Bivins told M.C. that

“the behavior was unacceptable and would not be tolerated at

school, and that he would have to stop or he would have

consequences.” (Defs.’ Ex. 1, Bivins Dep. (Doc. 85-1) at 101.)

Bivins also interviewed other children in the class. (Id.

at 102; Pls.’ Ex. 16, Investigation Notes (Doc. 94-16) at 1.)

According to Bivins, R.S.’s friends relayed that “there was a

lot of tickling going on, but they did not indicate anything

8 It is not clear what exactly M.C. admitted to in this

interview. In her deposition, Bivins recalls that M.C.

acknowledged “that he had touched students on the bottom,” but

did not specifically acknowledge that he had touched people on

their “private parts.” (Defs.’ Ex. 1, Bivins Dep. (Doc. 85-1) at

101.) But Bivins’ investigation notes relay that M.C. “sh[ook]

his head yes” when Bivins said “[a] friend said you touched her

in the privates,” and that M.C. described that while playing on

the carpet, “[t]hey were touching and tickling — head, bellies,

and privates. R.S. said stop and told the teacher. M.C. got a

behavior journal.” (Pls.’ Ex. 16, Investigation Notes (Doc. 94-

16) at 1.) Regardless, it is undisputed that M.C. admitted to,

in some variation, touching R.S. inappropriately.

about touching other students on the bottom or in private

parts.” (Defs.’ Ex. 1, Bivins Dep. (Doc. 85-1) at 102; see also

Pls.’ Ex. 16, Investigation Notes (Doc. 94-16) at 1.) Bivins

also interviewed K.G., who conveyed that M.C. had touched him

before,9 and interviewed M.C.’s older brother, A.V., who shared

that “he already knew that M.C. was touching kids” and that

M.C.’s teacher, Ms. Paque, had sent their mother a notification.

(Pls.’ Ex. 16, Investigation Notes (Doc. 94-16) at 1.)

At 9:45 a.m., Bivins emailed Fox to update her on the

investigation. She reiterated that R.S. is “very brave,” and

conveyed that “[t]here are more kids involved than just R.S. as

both ticklers/touchers and recipients.” (Pls.’ Ex. 30, E-mail

chain (Doc. 94-30) at 4.) She then outlined next steps,

explaining that

[o]nce we finish our student talks, we will reach out to

other parents to let them know what is happening. Barbie

[Garayua-Tudryn] will go in and do a formal class lesson

on safety, tickling and touching. This will include

reporting. I will meet with Madeline [Maldonado] and

Selene [Paque] and the other K assistants about student

supervision and student reporting for situations like

this. I will alert Ms. Raquel that R.S. views her as a

safety person as well. Ms. Paque will also arrange

9 Bivins’ investigation notes state that K.G. said “M.C.

touched him sometimes” but would not name where “because it was

embarrassing.” (Pls.’ Ex. 16, Investigation Notes (Doc. 94-16)

at 1.) However, the narrative of the police report Bivins

subsequently filed, which was created by speaking with Bivins,

conveys that “K.G. said that M.C. had touched his ‘private

parts’ before.” (Pls.’ Ex. 18, R.S. Police Report (Doc. 94-18)

at 3.)

seating in the classroom so [M.C.] is not seated near

R.S. on the carpet or table groups.

(Id.) Fox responded at 10:13 a.m., and explained that at R.S.’s

doctor’s appointment, “she gestured to show how [M.C.] touched

her, and it was not what I expected given her initial

description. It was sexual, and she still has bruising on ver

[sic] vagina.” (Id. 5.)10 In her response, Fox also expressed

concern with recess supervision, noting that she was “surprised

to find out that on some days there are only four adults

supervising 90-ish children at recess.” (Id.) Fox ended her

email by relaying she did not want “to risk sending [R.S.] back

until I know what the new plan is.” (Id.)

That same day, Bivins called M.C.’s parents by phone and

met with them in person. (Defs.’ Ex. 1, Bivins Dep. (Doc. 85-1)

at 96–97.) They were concerned and “indicated that they would

take action at their house.” (Id. at 97.) Bivins also relayed

Fox’s report to the school nurse, Nurse Anderson, who told her

that “it is likely not physically possible for [R.S.] to have

that that type of redness and irritation based on the reports of

[R.S.] and the other students.”11 (Id. at 104–05.) Bivins also

met with her Assistant Principal, Galassi-Ferrer, and the school

10 See supra n.5.

11 Nurse Anderson never evaluated R.S. (Defs.’ Ex. 1, Bivins

Dep. (Doc. 85-1) at 104.)

Counselor, Barbie Garayua-Tudryn, to devise a plan to address

the report. (Id. at 103.)

At 7:54 p.m. that evening, Bivins emailed Fox and explained

that

M.C. did not acknowledge that he touched or rubbed R.S.’s

privates but he does acknowledge that he has been

tickling and has touched in the privates (in general,

not R.S. specifically). We have no reason to not believe

him or R.S. but we can not confirm or not not confirm

the level of touching that would result in her privates

being red and irritated.12

(Pls.’ Ex. 30, E-mail chain (Doc. 94-30) at 5.) Bivins then

explained that she had 1) contacted other parents, 2) met with

Maldonado and Paque about student supervision and student

reporting for situations like this, 3) instructed Paque to

arrange seating in the classroom so that M.C. would not be

seated near R.S. on the carpet or table groups, and 4) offered

R.S. option to move to a new classroom. (See id.) She also

outlined her planned next steps: 1) that school counselor,

Garayua-Tudryn, would do a formal class lesson on safety,

tickling, and touching on Thursday, November 7; 2) that Bivins

12 Contrary to what is conveyed in this email, it is

undisputed that that M.C. did admit to inappropriately touching

R.S. in some way during his interview with Principal Bivins.

(See Defs.’ Ex. 1, Bivins Dep. (Doc. 85-1) at 100–01 (“[M.C.]

conveyed that he had been touching other students, [R.S.]

included, and he acknowledged that he had touched students on

the bottom.”); see Pls.’ Ex. 16, Investigation Notes (Doc. 94-

16) at 1 (conveying that M.C. shook his head yes when asked if

he touched a friend on the privates).)

would meet with other TAs to discuss student supervision on

November 6, and 3) that she would contact Chapel Hill Community

Policing to file a report on November 5. (See id.)

B. Tuesday, November 5, 2019

On Tuesday, November 5, Bivins filed a police report with

the Chapel Hill Police Department. (Defs.’ Ex. 1, Bivins Dep.

(Doc. 85-1) at 108; see Pls.’ Ex. 18, R.S. Police Report (Doc.

94-18).) In the report, the incident is categorized as “sexual

battery,” with R.S. listed as a victim and K.G. and A.V. listed

as “others involved.” (See Pls.’ Ex. 18, R.S. Police Report

(Doc. 94-18) at 1.)

C. Wednesday, November 6, 2019

On Wednesday, November 6 at 6:53 a.m., Fox emailed Bivins

asking whether the “TAs and other parents . . . know the

severity of the situation” and requesting “in writing the plan

for better supervision while this situation is under

investigation and whatever plan is put in place afterward,

including how the school will ensure the plans are really

followed so this never happens again to R.S. or anyone else.”

(Pls.’ Ex. 30, E-mail chain (Doc. 94-30) at 6.) She also

requested that “if it’s possible for [R.S.] to be with her many

Pre-K and family friends in Caro’s class, then we will take you

up on the offer to change classes.” (Id.)

Bivins responded later that same day, at 11:48 a.m.,

explaining that the TAs “are clear about the severity of the

situation. They are aware of the areas of supervision and how to

space themselves for adequate supervision.” (Defs.’ Ex. 2, R.S.

e-mail chain (Doc. 85-2) at 6.) She further explained that the

“investigation is complete and the plan of action shared in an

earlier email has been enacted. The administration will confer

weekly with the classroom teachers and assistants for the next

two months.” (Id.) Finally, Bivins agreed to Fox’s request that

R.S. be placed in “Caro’s” class, and said that she would “make

that change so she can begin when she returns to school.” (Id.)

D. Thursday, November 7, 2019

On November 7, at 8:32 a.m., R.S.’s father emailed Bivins,

requesting further details on the recess supervision plan,

specifically 1) what the areas of supervision are, 2) how

monitors will be spaced, 3) what the policy is for phone use, 4)

if there is a minimum number of monitors, and 5) whether

teachers will or will not be joining TAs to supervise recess.

(Id. at 7.) Bivins responded at 9:45 a.m., defining the areas of

supervision as “blacktop, field, play structure, [and] swing

area,” and explaining that teachers do not attend recess unless

a TA is absent. (Id.)

E. Friday, November 8, 2019

On November 8, Garayua-Tudryn responded to a November 7

email from Fox requesting therapists in the area, providing a

list of recommended providers. (Pls.’ Ex. 31, “child trauma

therapists?” e-mail chain (Doc. 94-31) at 1.)

F. Tuesday, November 12, 2019

On Tuesday, November 12, Fox emailed Bivins and Galassi-

Ferrer at 6:38 a.m. that R.S. would be absent again as “[w]e

aren’t confident in the safety plan, which seems to be that the

same TAs who let this happen will continue to supervise the

children, except now they have to be in zones.” (Pls.’ Ex. 30,

E-mail chain (Doc. 94-30) at 7.)13 At 8:45 a.m., Bivins forwarded

Fox’s emails to Quamesha Whitted-Miller and Misti Williams,14

explaining that “[t]he child has not been in school since last

Monday and [Guardian] has not been fully present. I think she is

preparing for a lawsuit.” (Id. at 8.) Bivins then e-mailed Fox,

13 As discussed supra n.3, it is not clear whether the

reported incident occurred on the playground, under the

supervision of the TAs to which Fox refers, or in the classroom,

under the supervision of Paque and Maldonado.

14 Defendant Williams was Bivins’ supervisor at the time.

(See Pls.’ Ex. 34, Dep. of Emily Bivins (“Bivins Dep.”) (Doc.

94-34) at 19.) According to Fox’s deposition, Whitted-Miller was

a human resources employee of the school board. (Defs.’ Ex. 4,

Fox Dep. (Doc. 85-4) at 107.)

alerting her that she had referred her string of emails to the

central office of the school district. (Id.)

G. Thursday, November 14, 2019

Around November 14, Fox had a meeting to discuss the

incident with the school district’s lawyer and Defendant

Quamesha Whitted-Miller. (Defs.’ Ex. 4, Fox Dep. (85-4) at 107.)

H. Wednesday, November 20, 2019

On Wednesday, November 20, after Fox requested an update on

the safety plan by email, Bivins responded as follows

It was my understanding that the school district’s

attorney and Human Resources were taking the next

actions and communication.

We want nothing more than for [R.S.] to return to school.

Our plan is for her or the other student to transition

to another class (the only Option is Laguna), teachers

accompany TAs and class to recess, Safe Touch

presentation given to Paque’s class and other K-1

classes two weeks ago15 and additional training and

monitoring for teachers and assistants about student

supervision. The other family had also followed up with

the police, DSS and a therapist for their child. We can

aldo [sic] refer [R.S.] to school based mental health

but I understood from the community policing that you

15 At the November 5, 2024, hearing before this court,

Plaintiff argued that there is a dispute of fact as to whether

this lesson ever occurred. Specifically, she stated “[t]here was

evidence to suggest that they did not [have a safe touch

class],” and verbally cited “evidence from the Orange County

Rape Crisis Center” in support. That evidence has not been

presented to this court. There is evidence before this court

that the safe touch class did occur, (see Pls.’ Ex. 30, E-mail

chain (Doc. 94-30) at 8), but there is no evidence on the record

suggesting the safe touch class did not occur. This fact is thus

not in dispute.

were looking into something outside of school. I am not

sure what else is expected which is why we are waiting

on HR.

(Pls.’ Ex. 30, E-mail chain (Doc. 94-30) at 8.) Fox responded

that evening, expressing her thanks and requesting that R.S.

stay in Paque’s class. (Id. at 9.) Bivins responded soon after,

noting that she would “reach out to [M.C.‘s] family about a

class change.” (Id.)

I. Thursday, November 21, 2019

On Thursday, November 21 at 10:33 a.m., Fox emailed Paque,

Garayua-Tudryn, Bivins, and Galassi-Ferrer, reporting that

“[g]iven the new safety plan, [R.S.] will come back [to school]

on Monday!” (Pls.’ Ex. 32, “[R.S.] returning” e-mail chain (Doc.

94-32) at 1.) Fox also requested “a brief meeting for [R.S.]”

with Paque and Garayua-Tudryn, requesting 1) they “let[] [R.S.]

know” that “[g]rown-ups are proud of her; grownups have new

ideas and new rules to help all the kids be safe; grownups will

make sure she and [M.C.] won’t be together,” 2) Paque to “tell

[R.S.] she’s sorry she didn’t hear her when [R.S.] tried to tell

([R.S.] did tell that [M.C.] had tickled her . . . .),” and 3)

they “make a very quick hand-print project,” with her. (Id.) All

parties agreed to the plan, and Bivins requested Fox sign a

release form so that Garayua-Tudryn could speak to R.S.’s

therapist. (Id. at 1–2.)

Later that day, R.S. told her nanny additional information

about the initial incident, specifically that M.C. put his

fingers in her vagina and in her anus. (Pls.’ Ex. 3, Cynthia

Balderas Decl. (“Balderas Decl.”) (Doc. 94-3) at 2.) Fox

immediately conveyed this new disclosure to Bivins, Paque,

Garayua-Tudryn, and Galassi-Ferrer at 5:07 p.m. (Pls.’ Ex. 32,

“[R.S.] returning” e-mail chain (Doc. 94-32) at 3.) Bivins

responded at 5:15 p.m., advising Fox to “contact the Community

policing office and share this disclosure with them.” (Id.) Fox

responded, “Thanks. We sure will.” (Id.) After this disclosure,

Bivins also e-mailed Williams, “formally request[ing] that

[Fox’s] children be placed at Carrboro Elementary.” (Id.)

J. Friday, November 22, 2019

On November 22, R.S. returned to school and had the

reorientation meeting requested by Fox, although Fox stated in

her deposition that “Paque did not, in fact, . . . say or

apologize for . . . not hearing [R.S.].” (Defs.’ Ex. 4, Fox Dep.

(Doc. 85-4) at 284–86.) Additionally, Fox met with Defendant

Williams “in her role as parent ombudsman,” who “suggested that

[she] move R.S. to a different school.” (Pls.’ Ex. 9, Fox Decl.

(Doc. 94-9) at 9.)16

K. Monday, December 2, 2019

On December 2 at 8:39 p.m., R.S.’s father emailed Bivins

and Williams that R.S. was “scared about seeing M.C.” and R.S.

thought that “adults were still not watching the kids at

recess.” (Pls.’ Ex. 32, “[R.S.]” returning e-mail chain (Doc.

94-32) at 4.) Her father noted, “We’re not sure how much of this

is her fear or whether the adults are still not paying proper

attention or both.” (Id.) Bivins responded at 9:28 p.m.,

explaining that “[t]here are several staff checking up on

supervision on the playground,” but also stating that she would

“speak with the K teachers and assistants again about your

concerns.” (Id.)17

L. Wednesday, December 4, 2019

On December 4, R.S. reported to her therapist, Nancy

Berson, that M.C. had threatened her at recess, saying that if

she did not get off the swing, he would touch her private parts

16 Fox stated in her deposition that the prospect of

switching schools was “offered as an option,” but that the

ultimate decision was left up to her. (Defs.’ Ex. 4, Fox Dep.

(Doc. 85-4) at 325–26.)

17 At 9:29 p.m., Bivins emailed Galassi-Ferrer, “This just

won’t end. Go to Carrboro already.” (Pls.’ Ex. 32, “[R.S.]

returning” e-mail chain (Doc. 94-32) at 4.)

again. (Pls.’ Ex. 5, Berson Aff. (Doc. 94-5) at 4.) Fox emailed

Williams, sharing this disclosure but noting that it was

“unclear whether it actually happened or whether it’s a

manifestation of her fears.” (Defs.’ Ex. 5, “Re: recess

supervision” e-mail chain (Doc. 85-5) at 5.) Fox also shared

that “[w]e were told by our social worker that the school

guidance counselor, Ms. Barbie [Garayua-Tudryn] told her “[]

could not possibly have threatened [R.S.] because ‘he has had so

many talks,’ and because ‘she knows that child.’” (Id.)18

Willaims responded that evening at 6:40 p.m., copying Bivins and

Galassi-Ferrer and instructing them to “conduct an investigation

first thing tomorrow morning.” (Id.) Bivins responded at 10:30

p.m., confirming they would investigate in the morning. (Id.)

M. Thursday, December 5, 2019

The following morning, Bivins emailed Fox at 9:42 a.m.,

stating:

I have met with school staff. They showed me the PLC

agenda where the assigned playground locations are and

the staff is spread out to provide the adequate

supervision we expect. [R.S.] wears a bright pink jacket

which has made it easier to track her movement on the

playground. There is designated staff who watch [R.S.]

18 In her Declaration, R.S.’s therapist, Nancy Berson,

asserts that Garayua-Tudryn stated “[M.C.] was a young boy, and

she did not see the need for [M.C.] and R.S. to have separate

times at recess.” (Pls’ Ex. 5, Berson Aff. (Doc. 94-5) at 5.)

According to Berson, “Tudryn also expressed skepticism regarding

R.S.’s initial report on November 1, 2019, and R.S.’s most

recent concerns.” (Id.)

and another staff who is watching []. The staff has

shared that [R.S.] and [] have not interacted with one

another. [R.S.] is generally playing tag with other

kids. She was observed running and hiding with some

friends during the tag game but [] was not involved.

[R.S.] is not in school today.

Barbie [Garayua-Tudryn] talked with Nancy Berson

yesterday and an email was received by Selene [Paque]

about the session with Nancy. Nancy is recommending that

[] not be in any space in which [] is (morning meeting,

recess, lunch, transitions, etc). As I have already

shared, that is just not possible. The adults are

vigilant in their supervision and are sneering there is

no interaction.

(Id. at 6.) Fox responded at 4:25 p.m., formally withdrawing

R.S. from FPG. (Id.)19

II. PROCEDURAL HISTORY

Plaintiffs filed their complaint on November 8, 2022. (Doc.

1.) On the same day, Fox moved for appointment of guardian ad

litem for minor, R.S., (Doc. 3), which was granted on February

6, 2023, (Doc. 18). On January 17, 2023, Plaintiffs filed their

First Amended Complaint, (Doc. 15). On January 9, 2024,

Plaintiffs filed their Second Amended Complaint, (Doc. 59).

On February 23, 2024, Plaintiffs filed their Third Amended

Complaint (“TAC”), (Third Am. Compl. (“TAC”) (Doc. 73)). On

19 Defendants, in their reply brief, “move to strike the

reference and exhibit in Plaintiff’s Response Brief” to the

argument that Plaintiff Rebecca Fox, “as a Jewish woman, felt

discriminated against by Bivins.” (Defs.’ Reply (Doc. 99) at 2.)

Neither Plaintiffs’ argument nor corresponding exhibit are

relevant to their current claims, and as such this court does

not rely upon them.

March 8, 2024, all Defendants filed a Motion to Dismiss and

Answer to Plaintiff’s Third Amended Complaint, (Doc. 76). On

April, 15, 2024, Defendants filed a Motion for Summary Judgment,

(Doc. 82), accompanied by a supporting memorandum, (Defs.’ Mem.

in Support (“Defs.’ Mem.”) (Doc. 85)).20 Plaintiffs responded in

opposition on May 3, 2024, (Pls.’ Resp. in Opp’n (“Pls.’ Resp.”)

(Doc. 94)). Defendants replied on May 17, 2024, (Defs.’ Reply to

Pl.’s Mem. (“Defs.’ Reply”) (Doc. 99)).

On May 5, 2024, Plaintiffs filed a Motion to Strike

Defendants’ Expert Opinion, (Doc. 95), which was denied by this

court on November 5, 2024, (Docket Entry 11/05/2024). On October

4, 2024, Defendants filed a Motion in Limine to Exclude or Limit

Evidence of Certain Experts or Other Evidence Requiring

Expertise, (Doc. 119), which was denied by this court on

November 5, 2024, (Docket Entry 11/05/2024). On October 22,

2024, Plaintiffs filed a Motion in Limine seeking to preclude

any expert evidence from Dr. Elizabeth Rodano at trial, (Doc.

132), which this court denied on November 5, 2024, (Docket Entry

11/05/2024).

20 This court refers throughout this Memorandum Opinion and

Order to Defendants’ sealed memorandum in support of their

motion for summary judgment. The public, unsealed memorandum is

found at Docket Entry 83. (See Doc. 83.)

On March 10, 2025, Plaintiffs filed a Motion to Redact

Information and Substitute Filed Documents, (Doc. 138).

III. STANDARD OF REVIEW

Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex

Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). This court’s

summary judgment inquiry is whether the evidence “is so one-

sided that one party must prevail as a matter of law.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The moving

party bears the initial burden of demonstrating “that there is

an absence of evidence to support the nonmoving party’s case.”

Celotex Corp., 477 U.S. at 325. If the “moving party discharges

its burden . . . , the nonmoving party must come forward with

specific facts showing that there is a genuine issue for trial.”

McLean v. Patten Cmtys., Inc., 332 F.3d 714, 719 (4th Cir. 2003)

(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586-87 (1986)). Summary judgment should be granted

“unless a reasonable jury could return a verdict in favor of the

nonmovant on the evidence presented.” McLean, 332 F.3d at 719

(citing Liberty Lobby, 477 U.S. at 247–48).

IV. ANALYSIS

Plaintiff R.S., by and through her guardian ad litem,

Rebecca Fox, brings the following claims: 1) a Title IX claim

against Defendant School Board, 2) 42 U.S.C. § 1983 claims

against Defendant School Board and all individual Defendants, in

their individual capacities, 3) state law claims of negligent

infliction of emotional distress against Defendant Board and

Defendant Bivins in her individual capacity, and 4) a state law

claim of negligent supervision and retention against Defendant

Board. (See TAC (Doc. 73) ¶¶ 111–192.) Plaintiff Fox brings one

state law claim of parental loss of services and companionship

against Defendant Board. (Id. ¶¶ 193–95.)

A. Title IX Claim against Defendant School Board21

Plaintiff R.S. alleges that Defendant School Board violated

Title IX by “fail[ing] to use their authority to end the

harassment reported by R.S.” (TAC (Doc. 73) ¶ 111–130; see also

Pls.’ Resp. (Doc. 94) at 7 (“Defendants failed to take prompt

and effective steps reasonably calculated to end the sexual

21 Although Plaintiff refers to Title IX as “U.S.C. § 1972,”

(see TAC (Doc. 73) at 16; Pls.’ Resp. (Doc. 94) at 7), this

court understands Plaintiff’s Title IX claim to invoke 20 U.S.C.

§§ 1681–1686, the statutes codifying Title IX.

harassment, eliminate the hostile environment, prevent the

harassment from recurring, and remedy its effects.”).)22

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). Although Title IX

does not provide an express private remedy, the Supreme Court in

Cannon v. University of Chicago found that “the words and

history of Title IX, but also its subject matter and underlying

purposes, counsel implication of a cause of action in favor of

private victims of discrimination.” 441 U.S. 677, 709 (1979).

This implied private remedy under Title IX is available to

victims of “student-on-student” or “peer” sexual harassment. See

generally Davis v. Monroe Cnty Bd. Of Educ., 526 U.S. 629

(1999).

22 Plaintiffs’ Third Amended Complaint also alleges that

Defendant School Board violated Title IX by “fail[ing] to

provide a safe environment for R.S. which resulted in her being

sexually harassed and bullied by her classmate.” (TAC (Doc. 73)

¶ 113.) However, Plaintiffs do not argue this “pre-assault”

Title IX liability theory at summary judgment, so this court

does not address it. See Kinetic Concepts, Inc. v. Convatec

Inc., No. 1:08CV00918, 2010 WL 1667285, at *8 (M.D.N.C. Apr. 23,

2010) (explaining that “in a variety of different contexts, a

large number of courts . . . have recognized the general

principle that a party who fails to address an issue has

conceded the issue”) (collecting cases).

To hold an educational institution liable for student-on-

student sexual harassment, a plaintiff must show:

1) they were a student at an educational institution

receiving federal funds;

2) they suffered sexual harassment that was so severe,

pervasive, and objectively offensive that it deprived

them of equal access to the educational opportunities

or benefits provided by their school;

3) the school, through an official who has authority to

address the alleged harassment and to institute

corrective measures, had actual notice or knowledge

of the alleged harassment; and

4) the school acted with deliberate indifference to the

alleged harassment.

Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 263–64 (4th Cir.

2021).

It is undisputed that Defendant School Board is an

educational institution that receives federal funds. (See TAC

(Doc. 73) ¶ 112; Defs’ Answer (Doc. 76) ¶ 112.) Defendant School

Board also does not dispute that what occurred between R.S. and

M.C. was sexual harassment that was “so severe, pervasive, and

objectively offense that it deprived [R.S.] of equal access to

the educational opportunities and benefits provided by their

school.” Fairfax Cnty., 1 F.4th at 263; (see Defs.’ Mem. (Doc.

85) at 8–14). Rather, Defendant School Board argues that upon

receiving actual notice of the allegation of sexual harassment,

“CHCCS employees promptly investigated . . . and implemented

steps that were reasonably calculated to address the behavior

based on the facts known to them and under the totality of the

circumstances,” (Defs’ Mem. (Doc. 85) at 10), and that the facts

alleged by Plaintiff “fail to demonstrate that CHCCS or its

employees acted with deliberate indifference,” (id. at 13–14).

Plaintiff argues in response that “Defendants acted with

deliberate indifference to her sexual harassment by failing to

take prompt effective steps reasonably calculated to end the

hostile environment.” (Pls.’ Resp. (Doc. 94) at 15.)

1. Actual Notice

“Under Title IX, a school’s actual notice of the alleged

sexual harassment is what triggers its duty to investigate.”

Fairfax Cnty., 1 F.4th at 268 (citing Davis, 526 U.S. at 649–50)

(emphasis added); see also Baynard v. Malone, 268 F.3d 228, 237

(4th Cir. 2001) (explaining that “the Supreme Court has

expressly rejected the use of ‘principles of respondeat superior

or constructive notice’ for imposing liability on a school

district under Title IX” (quoting Gebser v. Lago Vista Ind. Sch.

Dist., 524 U.S. 274, 285 (1998)).23 A school has “actual notice”

of “misconduct prohibited by Title IX” if “an appropriate

official in fact received such a report or complaint and . . . a

reasonable official would construe it as alleging misconduct

prohibited by Title IX.” Id.24

Defendants contend that the School Board acquired actual

notice on November 1, 2019, when Plaintiff e-mailed R.S.’s

report to Defendant Principal Bivins, Selene Paque, Madeline

Maldonado, Barbie Garayua-Tudryn, and Karen Galassi-Ferrer.

(Defs.’ Mem. (Doc. 85) at 10 (“The undisputed facts show that

upon receiving actual knowledge of a report [of] alleged sexual

harassment on November 1, 2019 . . . .”).) Plaintiff does not

23 Plaintiff argues that Department of Education guidelines

impose a “constructive notice” standard, “making schools liable

for sexual harassment when a ‘responsible employee’ knew or

should have known of the harassment.” (Pls.’ Resp. (Doc. 94) at

8.) The current Title IX regulations state that “[a] recipient

with knowledge of conduct that reasonably may constitute sex

discrimination in its education program or activity must respond

promptly and effectively.” 34 C.F.R. § 106.44(a)(1). They do not

purport to impose a “constructive notice” standard. But even if

they did, it is well-settled that the Department of Education’s

“administrative enforcement standard need not be identical to

the standard for monetary damages in private litigation.” 89

Fed. Reg. 83 33474, 33499 (2024). This is because a private

right of action under Title IX is “judicially implied,” and thus

courts have “a measure of latitude to shape a sensible remedial

scheme that best comports with the statute.” Gebser, 524 U.S. at

284.

24 “An ‘appropriate person’ under § 1682 is, at a minimum,

an official of the recipient entity with authority to take

corrective action to end the discrimination.” Gebser, 524 U.S.

at 290.

argue otherwise and agrees that “Defendant Bivins was a school

official who had the authority to address the harassment of R.S.

that was disclosed to her . . . placing Defendant Board on

[n]otice.” (Pls.’ Resp. (Doc. 94) at 8.)

2. Deliberate Indifference

Given the above analysis, the crux of this Title IX dispute

is whether Defendant School Board’s response, after acquiring

actual notice on November 1, 2019, to the incident between R.S.

and M.C. amounted to “deliberate indifference,” such that the

lack of response either “cause[d] [R.S.] to undergo harassment,”

or “ma[de] [her] liable or vulnerable to the harassment.” See

Fairfax Cnty., 1 F.4th at 273–74 (citation and internal

quotation marks omitted). Courts may decide the question of

deliberate indifference as a matter of law at summary judgment.

See Davis, 526 U.S. at 649.

Deliberate indifference is a high bar — “a school will be

liable for student-on-student harassment only where its

‘response . . . or lack thereof is clearly unreasonable in light

of the known circumstances.’” S.B. ex rel. A.L. v. Bd. of Educ.

of Harford Cnty., 819 F.3d 69, 76–77 (4th Cir. 2016) (applying

Title IX’s deliberate indifference standard in Rehabilitation

Act context) (quoting Davis, 526 U.S. at 648). “The purpose of

the high standard of deliberate indifference is to limit a

school’s liability to situations where there is ‘an official

decision by the [school] not to remedy the violation.’” Gonzales

v. Marshall Univ. Bd. of Governors, No. CV 3:18-0235, 2019 WL

3432533, at *4 (S.D.W. Va. July 30, 2019), aff'd, 830 F. App'x

403 (4th Cir. 2020) (quoting Davis, 526 U.S. at 642). Courts, in

analyzing the question of deliberate indifference, must be

cognizant of the fact that “school administrators are entitled

to substantial deference when they calibrate a disciplinary

response to student-on-student bullying or harassment.” S.B. ex

rel. A.L., 819 F.3d at 77.

A school’s responses “do not become ‘clearly unreasonable’

simply because a victim or his parents advocated for stronger

remedial measures,” id. (citation omitted), nor is a school

district considered deliberately indifferent to a report of

sexual harassment because its response did not “remedy” the

harassment. See Davis, 526 U.S. at 648–49 (explaining that

funding recipients are not required to “‘remedy’ peer

harassment” but are only required to “respond to known peer

harassment in a manner that is not clearly unreasonable”).

However, deliberate indifference may be found where a “school

‘dragged its feet’ before implementing ‘little more than half-

hearted measures.’” S.B. ex rel. A.L., 819 F.3d at 77 (quoting

Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 669–70 (2d

Cir. 2012)).

In its Motion for Summary Judgment, Defendant School Board

argues that it did not act with deliberate indifference in

response to R.S.’s report because Principal Bivins “immediately

began investigating the report made by Plaintiff,” “made a

report to law enforcement,” “held conversations with the

involved students,” “had conferences with their parents,”

“arranged for a safe touch lesson to be held with the

kindergarten classes,” and “designed and instituted a safety

plan specifically geared towards R.S.” (Defs.’ Mem. (Doc. 85) at

10–11.)

Plaintiff argues that Defendant School Board’s response was

“clearly unreasonable” because 1) M.C. was allowed to remain in

Paque’s class, 2) Defendant School Board did not require M.C. to

be psychologically evaluated, nor require him to receive a “full

psychological evaluation or an evaluation of risk for

problematic sexual behavior,” 3) the school did not reach out to

R.S.’s pediatrician or her therapist, 4) M.C. “received no

consequences,” 5) the school counselor was “dismissive” of

R.S.’s trauma and “did not support the recommendation that

[M.C.] and R.S. remain separated,” 6) did not grant “R.S.’s

basic request in scheduling a restorative conference with her

and [M.C.],” 7) denied “Guardian’s request to have a restorative

conference with the staff,” 8) “failed to log the incident into

PowerSchool and complete the requisite office discipline

referral form and/or Bullying and Harassment Reporting form,”

and 9) failed to keep M.C. away from R.S., which led to “[M.C.]

threaten[ing] R.S. again while they were on the playground

during recesses.” (Pls.’ Resp. (Doc. 94) at 9–14.)

The undisputed evidence shows that the school responded as

follows. Within 72 hours of Fox’s initial report, Principal

Bivins 1) discussed the incident with R.S.’s teacher and the TA,

(Pls.’ Ex. 16, Investigation Notes (Doc. 94-16) at 2), 2)

interviewed R.S. about the incident, praising her for her

bravery and telling R.S. that she could go to any of several

adults if she was feeling uncomfortable, (R.S. Initial Meeting –

Full (Doc. 105) at 17:10–18:19), 3) met with M.C. to discuss the

incident and verbally reprimand him,25 (Pls.’ Ex. 34, Bivins Dep.

(Doc. 94-34) at 11), 4) interviewed several of R.S. and M.C.’s

classmates, (Pls.’ Ex. 16, Investigation Notes (Doc. 94-16) at

25 Plaintiff argues that M.C. received “no consequences.”

(Pls.’ Resp. (Doc. 94) at 11–12.) The record does not support

such an argument. While M.C. may not have been suspended or

expelled, the record shows that M.C. was verbally reprimanded by

the principal of his school and his conduct was reported to his

parents. The Fourth Circuit has recognized “student warnings”

and “parent phone calls,” as forms of student discipline. See

S.B. ex rel. A.L., 819 F.3d at 72.

1; Pls.’ Ex. 34, Bivins Dep. (Doc. 94-34) at 12–13), 5)

interviewed M.C.’s older brother, (Pls.’ Ex. 16, Investigation

Notes (Doc. 94-16) at 1), 6) met in person with M.C.’s parents

to discuss the incident, (Pls.’ Ex. 34, Bivins Dep. (Doc. 94-34)

at 7–8), and 7) met with the Assistant Principal and the school

counselor to devise a plan for R.S.’s safety, (Pls.’ Ex. 34,

Bivins Dep. (Doc. 94-34) at 15–16).

The evening of November 4, (within 73 hours of the initial

report), Bivins emailed Fox advising her of the steps that had

been completed during the school day and the steps that would be

taken in the coming days, which included 1) meeting with other

kindergarten assistants to discuss student supervision and

student reporting for situations like this, 2) alerting “Ms.

Raquel” that R.S. viewed her as a safety person, 3) instructing

Paque to rearrange seating in the classroom so that R.S. and

M.C. would not be seated near each other, 4) filing a police

report and 5) scheduling a “formal class lesson on safety,

tickling and touching.” (Pls.’ Ex. 30, E-mail chain (Doc. 94-30)

at 5.) She also, at this time, offered Fox the option for R.S.

to switch classes. (Id.)

The school continued to take steps in response to the

incident throughout the remainder of November, as R.S. continued

to be absent from school. For example, throughout the week of

November 4, Bivins filed a police report, (Pls.’ Ex. 18, R.S.

Police Report (Doc. 94-18) at 1), met with TAs on Wednesday,

November 6, to discuss the situation, supervision, and student

reports, (Pls.’ Ex. 30, E-mail chain (Doc. 94-30) at 6), and

acceded to Fox’s request that R.S. be switched to a specific

teacher’s classroom, (id.). Also that week, R.S.’s kindergarten

class received their “formal class lesson on safety, tickling

and touching.” (See id. at 8 (November 20 email from Bivins

stating: “Safe Touch presentation given to Paque’s class and

other K-1 classes two weeks ago. . . .”). The following week,

with R.S. still absent, more steps were taken — on Tuesday,

November 12, Bivins elevated R.S.’s report, referring Fox’s

emails to the central office of the school district, (id.), and

around November 14, the school district’s lawyer and two human

resources representatives met with Fox to discuss the incident,

(Defs.’ Ex. 4, Fox. Dep. (Doc. 85-4) at 107).26 The following

week, after continued absence from R.S., the school responded

with more steps, offering for either R.S. or the other student

to switch classes, increasing the number of adults supervising

kindergarten recess, and noting that there would be additional

training for teachers and TAs about student supervision,

26 At some point, Williams also offered Plaintiff the option

to switch schools. (See Defs.’ Ex. 4, Fox Dep. (Doc. 85-4) at

325.)

confirming that M.C.’s family had followed up with the police,

DSS, and a therapist, and offering school-based mental health

for R.S. (Pls.’ Ex. 30, E-mail chain (Doc. 94-30) at 8.)

After R.S.’s disclosure on November 21, 2019, of

additional details regarding the initial incident, Bivins

responded within minutes, encouraging Fox to report additional

details to the police. (Pls.’ Ex. 32, “[R.S.] returning” e-mail

chain (Doc. 94-32) at 3.) When R.S. returned to school on

November 22, the school arranged for M.C. to switch to a

different class, (see Pls.’ Ex. 9, Fox Decl. (Doc. 94-9) at 15),

and held a “reorientation” meeting for R.S., (see Defs.’ Ex. 4,

Fox Dep. (Doc. 85-4) at 284–86; Pls.’ Ex. 9, Fox Decl. (Doc. 94-

9) at 9.)27 When R.S. told her parents that M.C. had threatened

her, the evidence shows that the school promptly investigated,

found the report unsubstantiated, and confirmed that staff were

closely watching the children to prevent interaction. (See

Defs.’ Ex. 5, “[R.S.] returning” e-mail chain (Doc. 85-5) at 5–

6.)

27 Although Plaintiff Fox states in her Declaration that he

orientation meeting “was not what we expected or what R.S.’s

trauma therapist had designed,” (Pls.’ Ex. 9, Fox Decl. (Doc.

94-9) at 9), she stated in her deposition she agreed that at her

family’s request, the staff “made an effort to welcome [R.S.]

back,” (Defs.’ Ex. 4, Fox Dep. (Doc. 85-4) at 287).

Plaintiff, in her briefing, has not cited any cases to

support a conclusion that the remedial measures Defendant School

Board took constitute “deliberate indifference.” (See generally

Pls.’ Resp. (Doc. 94) at 9–15.) Instead, Plaintiff argues first

that Defendant School Board’s response was clearly unreasonable

because “[a]t no point did Defendant Bivins require that [M.C.]

be evaluated to determine what his triggers were and if it was

safe to allow him to remain in Paque’s classroom or be in a

setting where he had exposure to R.S. and other minor students.”

(Id. at 10–11.) In support of this argument, Plaintiff cites to

her rebuttal expert, Kelli Underwood’s deposition, in which she

states that, “most of the time what [she] see[s] is an

elimination of contact until there is more information and more

recommendations from internal and external experts and

resources.” (Pls.’ Ex. 39, Dep. of Kelli Underwood, LCSW (Doc.

94-39) at 3.)

Defendant School Board’s failure to comply with what

Plaintiff argues is a customary procedure or an industry

standard is inapposite to the question of deliberate

indifference, which requires only that “the recipient must

merely respond to known peer harassment in a manner that is not

clearly unreasonable.” Davis, 526 U.S. at 649. While following

customary procedures may yield a paradigmatic response to

student-on-student harassment, “[a] showing that [the school]

did not employ the best practices or even that it was negligent

is insufficient.” Butters v. James Madison Univ., 208 F. Supp.

3d 745, 755 (W.D. Va. 2016). Accordingly, to the extent that the

parties’ experts dispute the School Board’s adherence to

industry customs, it is not material.

Further, Plaintiff argues that Defendant did not follow its

own disciplinary policies.28 But “a Title IX defendant’s failure

to comply with its own policy does not prove deliberate

indifference.” Nance v. Rowan-Salisbury Bd. of Educ., 1:17-cv-

957, 2019 WL 1437212, at *5 (M.D.N.C. 2019) (quoting Facchetti

v. Bridgewater Coll., 175 F. Supp. 3d 627, 638 (W.D. Va. 2016)).

To the extent that a school does not comply with its own

policies, these “procedural shortcomings do not diminish the

substantive impact of all the steps [the defendants] took in

28 Plaintiff also describes several other FPG student

misconduct incidents and how the school responded. (See Pls.’

Resp. (Doc. 94) at 13–14.) According to Plaintiff, “Defendants’

deliberate indifference to R.S.’s harassment can also be

demonstrated through a review of some of Defendant Bivins’

history of consequences given to students at Frank Porter Graham

who committed similar Levels of offenses as [M.C.].” (Id. at

13.) But beyond this conclusory statement, Plaintiff does not

explain how Defendant School Board’s response to other incidents

not at issue here could be relevant to whether Defendant School

Board responded with deliberate indifference to R.S.’s report,

nor does Plaintiff cite any cases where courts have taken this

kind of extraneous information into consideration when

determining if an educational entity has acted with “deliberate

indifference.”

response to [a plaintiff’s] complaints.” Doe v. Bd. of Educ. of

Prince George’s Cnty., 605 F. App’x 159, 168 (4th Cir. 2015)

(citation and internal quotation marks omitted).

As discussed above, the bar for what constitutes deliberate

indifference is high, see Fairfax Cnty., 1 F.4th at 268; S.B. ex

rel. A.L., 819 F.3d at 76–77, and the Fourth Circuit’s

application of the deliberate indifference standard exemplifies

that principle. For example, in Fairfax County the Fourth

Circuit concluded that a reasonable jury could find the school

had responded to a report of sexual assault with deliberate

indifference. 1 F.4th at 272–73. There, a high school junior was

sexually assaulted on a school band bus trip out of state. When

her friends reported the incident to school officials, the

school officials “took no action regarding these reports during

the trip, and they did not speak to either [the victim] or her

parents about what had happened on the bus ride.” Id. at 261.

Further, school officials “made inappropriate jokes about the

reported incident,” asked the victim “a number of accusatory

questions,” “discussed with [the victim], but not with [the

assailant], the possibility of being disciplined for engaging in

sexual activity on a school trip,” and never “spoke with other

students who were identified as potential sources of information

about the bus incident.” Id. at 271–72.

Similarly, in Jennings v. University of North Carolina, the

Fourth Circuit held that a reasonable jury could find the school

had been deliberately indifferent to a student’s complaint of

sexual harassment where the student reported that her coach had

made consistent sexually charged comments towards her and the

school’s highest lawyer “dismissed this complaint by telling

[the plaintiff] that [the coach] was a ‘great guy’ and that she

should work out her problems directly with him.” 482 F.3d 686,

700–01 (4th Cir. 2007). In other words, “the University’s

failure to take any action to remedy the situation would allow a

rational jury to find deliberate indifference to ongoing

discrimination.” Id. at 701 (emphasis added).

Defendant School Board’s layered response to R.S.’s report

is distinct from the apathy of the educational institutions in

Fairfax County and Jennings. Rather, Defendant School Board’s

response is factually similar to many cases within this circuit

finding that educational institutions were not deliberately

indifferent as a matter of law. See S.B. ex rel. A.L., 819 F.3d

at 77 (finding no deliberate indifference where school responded

to high schooler’s report of bullying and sexual harassment by

investigating, disciplining offenders with consequences ranging

from “parent phone calls to detentions to suspensions,” and

assigning a “paraeducator” to accompany victim during the day);

Bd. of Educ. of Prince George’s Cnty, 605 F. App’x at 161–63

(affirming district court’s finding that school was not

deliberately indifferent where school responded to fourth

grader’s report that classmate exposed his genitals to him,

verbally sexually harassed him, and tried to climb into his

bathroom stall by instructing teacher to rearrange the classroom

so the students were not near each other, suspending perpetrator

for five days, and “implement[ing] procedures to protect” the

victim while he used the bathroom); Rouse v. Duke Univ., 914 F.

Supp. 2d 717, 724–27 (M.D.N.C. 2012), aff’d, 535 Fed. App’x 289

(4th Cir. 2013) (finding no deliberate indifference to student’s

report of rape where school cooperated with law enforcement

during investigation and suspended resident of the house where

it occurred).

Factually analogous out-of-circuit caselaw analyzing

schools’ responses to reports of young children engaging in

sexual touching also supports a finding that Defendant School

Board was not deliberately indifferent to R.S.’s report. See

Brooks v. City of Philadelphia, 747 F. Supp. 2d 477, 481–84

(E.D. Pa. 2010) (finding school did not act with deliberate

indifference to report of a kindergartener touching his

classmate’s genitalia in the bathroom where it responded by

speaking to both boys, contacting parents, requesting they not

be able to use the bathroom at the same time, and changing their

seats); Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 169,

173 (1st Cir. 2007) (reversed on other grounds) (finding no

deliberate indifference to kindergartener’s report that student

on bus “bullied her into pulling down her underpants and

spreading her legs,” where school “immediately launched an

investigation . . . [which] consisted of . . . interviews” of

the victim, perpetrator, bus driver, and other students on the

bus, and “cooperated fully in an investigation undertaken by the

local police,” “offered to change [the victim’s] transit

assignment”); Gabrielle M. v. Park Forest-Chi. Heights, IL. Sch.

Dist. 163, 315 F.3d 817, 825 (7th Cir. 2003) (“[I]n light of

each of the immediate disciplinary and preventive steps the

school district had already taken in response to [perpetrator’s]

conduct, including most prominently the decisions to move him to

another class entirely and eventually to grant [victim’s]

request for a school transfer; it was not clearly unreasonable

as a matter of law initially to assign an instructor to oversee

a communal recess and lunch period instead of immediately

rescheduling the lunch and recess period for a whole

kindergarten class.”).

Plaintiff may have been displeased with the response by

Defendant School District. And the response itself may not have

been perfect. “But Title IX does not require educational

institutions to take heroic measures, to perform flawless

investigations, to craft perfect solutions, or to adopt

strategies advocated by parents. The test is objective — whether

the institution’s response, evaluated in light of the known

circumstances, is so deficient as to be clearly unreasonable.”

Fitzgerald, 504 F.3d at 174. In the absence of what amounts to

“effectively ‘an official decision by [the school] not to

remedy’ student-on-student harassment,” a school will not be

held liable under Title IX. See S.B. ex rel. A.L., 819 F.3d at

76–77.29

29 It also bears noting that both parties have submitted

expert reports. The experts disagree as to the adequacy of the

steps taken by Defendant School Board. (Compare Pls.’ Ex. 10,

Decl. of Pls.’ Expert Witness, Jessica Hubbard, MSW, LCSW (Doc.

94-10) at 22 (expressing “concerns that the school’s response

was not sufficient to protect R.S. from future harm”); Pls.’ Ex.

14, Decl. of Pls.’ Expert Rebuttal Witness Kelli Underwood, MSW,

LCSW (Doc. 94-14) at 16 (“The Chapel-Hill Carrboro City School

District and its personnel’s procedures and responses were

deficient in meeting the standards of care and safety needs of

R.S. and other students.”), with Defs.’ Ex. 3, Aff. of Elizabeth

Rodano, Ed.D. (Doc. 85-3) at 3 (“[Defendants] responded in a

timely and appropriate manner to the initial parent report of

the incident.”).) As explained above, determining the adequacy

of Defendant School Board’s response to R.S.’s report and

whether it constituted “deliberate indifference” as established

by Title IX caselaw may be answered as a matter of law. See

Davis, 526 U.S. at 649. Accordingly, the experts’ dispute

regarding the adequacy of Defendant School Board’s response is

not a dispute of material fact, but rather a dispute of law that

does not prevent this court from granting summary judgment.

This court finds that no reasonable jury could find that

Defendant School Board responded to the incident here with

deliberate indifference. Accordingly, this court grants

Defendants’ Motion for Summary Judgment as to Plaintiff’s Title

IX claim.

B. 42 U.S.C. § 1983 Claims

Plaintiff alleges that Defendants Bivins and Williams

violated her Fourteenth Amendment rights to Equal Protection and

to personal security and bodily integrity, (see TAC (Doc. 73) ¶

137), and that Defendant School Board, Defendant Gonzalez, and

Defendant Whitted-Miller “operated under unconstitutional

policies and/or practices.” (Id. ¶ 138.) She pursues relief for

these violations via 42 U.S.C. § 1983 against Defendant School

Board, and Defendants Williams, Bivins, Gonzalez, and Whitted-

Miller in their individual capacities. (Id. ¶¶ 131–161.)

42 U.S.C. § 1983 provides that

[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity,

or other proper proceeding for redress.

42 U.S.C. § 1983. “Under 42 U.S.C. § 1983, a plaintiff must

establish three elements to state a cause of action: (1) the

deprivation of a right secured by the Constitution or a federal

statute; (2) by a person; (3) acting under color of state law.”

Jenkins v. Medford, 119 F.3d 1156, 1159–60 (4th Cir. 1997).

As an initial matter, Defendants argue that Plaintiff has

not put forth sufficient evidence to maintain § 1983 claims

against Defendants Whitted-Miller and Gonzalez. (Defs.’ Mem.

(Doc. 85) at 17–19.) Plaintiff does not respond to this argument

and in fact, makes no mention of Whitted-Miller or Gonzalez in

the section of her response dedicated to her § 1983 claims. (See

Pls.’ Resp. (Doc. 94) at 15–18.) This court thus finds that

Plaintiff has abandoned her § 1983 claims against Defendants

Whitted-Miller and Gonzalez in their individual capacities. See

supra n.22. In her response, Plaintiff clarifies her § 1983

claims as follows. She argues 1) Defendant Bivins’ various

actions and inactions violated R.S.’s constitutional rights, 2)

Defendant Williams, as her supervisor, “use[d] her role as a

direct facilitation of Bivins’ discrimination,” and 3) Defendant

School Board, “has a custom and practice in allowing staff . . .

to conduct Title IX training investigations without training.”

(Pls.’ Resp. (Doc. 94) at 15–16.) Accordingly, this court

understands Plaintiff to argue that Defendant Bivins violated

R.S.’s constitutional rights, and that liability should

additionally be imputed to both Williams, as her supervisor, see

Shaw v. Stroud, 13 F.3d 791, 798–99 (4th Cir. 1994) (recognizing

§ 1983 supervisory liability), and the School Board as the

municipality that employs her, see Monell v. Dep’t of Soc.

Servs. of the City of New York, 436 U.S. 658, 690 (1978)

(recognizing § 1983 municipal liability).

1. Deprivation of a right secured by the

Constitution or a federal statute

Accordingly, this court must determine whether a reasonable

jury could find that Defendant Bivins deprived R.S. of her 1)

right to equal protection and 2) her right to bodily integrity

and personal security.

i. Equal Protection Clause

In her TAC, Plaintiff invokes the Equal Protection Clause

of the Fourteenth Amendment, which states that “[n]o state shall

. . . deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV, § 1. Plaintiff

alleges that “Defendants discriminated against R.S. based on her

sex and gender by not providing her with the equal protections

of the law and defendants [sic] policies and procedures.” (TAC

(Doc. 73) at 19.) In the context of a school’s response to

student-on-student harassment, a plaintiff may show the Equal

Protection Clause was violated where a school administrator,

“motived by a discriminatory intent,” “responded to the

discriminatory peer harassment with deliberate indifference.”

Feminist Majority Found. v. Hurley, 911 F.3d 674, 702–03 (4th

Cir. 2018). Alternatively, a plaintiff may allege that the Equal

Protection Clause was violated based on “discriminatory

treatment in the investigation of student behavior and in the

treatment of student complaints.” Fitzgerald v. Barnstable Sch.

Comm., 555 U.S. 246, 260 (2009).

Deliberate Indifference Theory

Defendants argue that “there is no evidence to support a

claim that Individual Defendants acted with deliberate

indifference.” (Defs.’ Mem. (Doc. 85) at 17.) Plaintiff’s

response does not directly refute this argument,30 focusing her

response on pointing out facts that she argues demonstrate

Defendant Bivins’ and Defendant Williams’ discriminatory

intent.31

30 Within the section of Plaintiff’s response entitled

“Count 2: 14th Amendment, 42 U.S.C. § 1983,” there is not a

single case cited — a briefing infirmity which makes it

difficult for this court to ascertain Plaintiff’s legal

arguments and violates Local Civil Rule 56.1(e), which states:

“In a responsive brief the party having made the challenged

claim may, within 30 days after service of the summary judgment

motion and brief, file with the Court a response that . . . sets

out the elements that it must prove (with citations to

supporting authority).” L.R. 56.1(e) (emphasis added).

31 (See Pls.’ Resp. (Doc. 94) at 16 (titling argument

“Defendant Bivins and Defendant Williams deliberate indiffernce

[sic] to R.S.’s harassment was movitated [sic] by their bias

agaisnt [sic] student on student sexual assault complainants”).)

For the same reasons discussed extensively above, supra

Section IV.A.2, this court finds that Defendant Bivins response

to R.S.’s report was not “deliberately indifferent.” See Hurley,

911 F.3d at 703 (recognizing similarity between Title IX and

equal protection “deliberate indifference” standards and

referring to Title IX analysis in discussing equal protection

claim). Because deliberate indifference is a necessary element

of this equal protection theory, this court need not reach the

merits of the other elements.

Discriminatory Investigation Theory

Plaintiff’s equal protection theory based on

“discriminatory treatment in the investigation” must also fail.

See Fitzgerald, 555 U.S. at 260. An equal protection claim based

on discriminatory treatment requires a plaintiff to first show

that “[s]he has been treated differently from others with whom

[s]he is similarly situated and that the unequal treatment was

the result of intentional or purposeful discrimination.”

Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001).

To the extent Plaintiff argues that Bivins’ investigative

steps were discriminatory based upon her sex, Plaintiff has not

put forth evidence that she was treated differently from male

students with whom she is similarly situated. The only person

she argues she was treated differently than is minor K.G. (Pls.’

Resp. (Doc. 94) at 15.) Specifically, Plaintiff contends that

Bivins concluded that minor K.G.’s report that M.C. touched him

was “substantiated” while hers was not, despite the fact that no

“students reported to [Bivins] that they saw [M.C.] touch K.G.’S

[sic] privates either.” (Id.) Regardless of Bivins’ subjective

belief as to the veracity of the reports, there is no evidence

that K.G. received more favorable treatment than R.S. See

English v. Clarke, 90 F.4th 636, 649 (4th Cir. 2024) (granting

summary judgment as to equal protection claim because plaintiff

“has not attempted to identify any better-treated individuals

similarly situated to him, nor has he brought to the court any

evidence suggesting such individuals might exist”). Both R.S.

and K.G. were listed as victims on the official police report

filed by Bivins and R.S. received a variety of school-sponsored

responses for her safety — there is no evidence that K.G.

received even the same, let alone better, treatment.

To the extent Plaintiff argues that school officials

discriminated against her as a “sexual assault complainant,”

this too must fail. Plaintiff identifies several reported non-

sexual assault incidents, (see Pls.’ Resp. (Doc. 94) at 16), and

argues that the perpetrators in those incidents received more

severe treatment than M.C. In focusing on the differential

treatment of the offenders, she fails to identify any difference

in treatment of the reporters of the conduct. As explained

above, equal protection claims require the plaintiff to show

that they were treated differently than similarly situated

individuals. Plaintiff has failed to do so.

Even if this court were to construe Plaintiff’s argument to

be that school officials took reports of non-sexual assault more

seriously than reports of sexual assault, the evidence does not

show that R.S. and any of the referenced victims are “similarly

situated,” such that they are “in all relevant respects alike.”

Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). The three victims

referenced by Plaintiff were threatened or assaulted by nine and

ten year olds. R.S., instead, was assaulted by a five-year-old.

See United States v. Johnson, 122 F. Supp. 3d 272, 361 (M.D.N.C.

2015) (“[I]n determining whether persons are similarly situated

for equal protection purposes, a court must examine all relevant

factors.”).

And even if this court were to assume that these

individuals are “similarly situated” to R.S., Plaintiff has not

cited any caselaw to support a finding that “sexual-assault

complainants” are a protected class under the equal protection

clause. Accordingly, any disparate treatment between the

“sexual-assault complainant” group and the “non-sexual assault

complainant” group will be “presumed to be valid and will be

sustained ‘if there is a rational relationship between the

disparity of treatment and some legitimate governmental

purpose.’” King v. Rubenstein, 825 F.3d 206, 221 (4th Cir. 2016)

(citation omitted). “The showing required to overturn that

presumption is steep. A challenger must show there is no

‘rational relationship between the disparity of treatment and

some legitimate governmental purpose.’” Doe v. Settle, 24 F.4th

932, 943 (4th Cir. 2022). Plaintiff has not put forth any

argument nor evidence that this purported differential treatment

fails to satisfy rational basis review.

ii. Substantive Due Process Claim

Plaintiff also alleges in the TAC that “Defendant Emily

Bivins and Misti Williams subjected R.S. to violations of her

rights to . . . personal security and bodily integrity.” (TAC

(Doc. 73) ¶ 137.) In this case, R.S. does not allege that Bivins

or Williams directly violated her rights to personal security

and bodily integrity. Rather, she proceeds on the theory that

state actors failed to protect her from the acts of M.C., a

private citizen.32

This claim invokes the Fourteenth Amendment’s substantive

due process clause, which protects against state intrusions

32 Again, as discussed supra n.30, Plaintiff, in her

response to summary judgment, does not cite any caselaw in

support of this claim.

against bodily integrity without due process of law. See

Ingraham v. Wright, 430 U.S. 651, 673–74 (1977); Doe v. Rosa,

795 F.3d 429, 436–37 (4th Cir. 2015). However, “nothing in the

language of the Due Process Clause itself requires the State to

protect the life, liberty, and property of its citizens against

invasion by private actors.” DeShaney v. Winnebago Cnty. Dep’t

of Soc. Servs., 489 U.S. 189, 195 (1989). The general rule is

that “a State’s failure to protect an individual against private

violence simply does not constitute a violation of the Due

Process Clause.” Id. at 197. There are two exceptions to this

general rule. First, “if the state has a special relationship

with an individual, the state has an affirmative duty to protect

the individual from harm inflicted by third parties.” Stevenson

ex rel. Stevenson v. Martin Cnty. Bd. of Edu., 3 F. App’x 25, 30

(4th Cir. 2001). Second, a state can be liable “when the state

itself creates the danger.” Id. at 31.

The “special relationship” exception does not apply here.

The Supreme Court has identified “certain limited

circumstances,” where “the Constitution imposes upon the State

affirmative duties of care and protection with respect to

particular individuals,” such as “incarcerated prisoners” and

“involuntarily committed mental patients.” DeShaney, 489 U.S. at

198–99. These special relationships recognize that “when the

State takes a person into its custody and holds him there

against his will, the Constitution imposes upon it a

corresponding duty to assume some responsibility for his safety

and general well-being.” Id. at 200–01.

Courts across the country have declined to extend this

affirmative “special relationship” duty to the school setting.

See Stevenson, 3 F. App’x at 30–31 (holding that “no special

relationship exists because the student is not in physical

custody and, along with parental help, is able to care for his

basic human needs”); Doe v. Hillsboro Ind. Sch. Dist., 113 F.3d

1412, 1415 (5th Cir. 1997) (declining to hold “that compulsory

attendance laws alone create a special relationship giving rise

to a constitutionally rooted duty of school officials to protect

students from private actors”); Doe v. Claiborne Cnty., Tenn. By

& Through Claiborne Cnty. Bd. of Educ., 103 F.3d 495, 510 (6th

Cir. 1996) (same); Dorothy J. v. Little Rock Sch. Dist., 7 F.3d

729, 733 (8th Cir. 1993) (same); D.R. by L.R. v. Middle Bucks

Area Vocational Tech. Sch., 972 F.2d 1364, 1372 (3d Cir. 1992);

J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272 (7th

Cir. 1990); Maldonado v. Josey, 975 F.2d 727, 732–33 (10th Cir.

1992). This court agrees with the reasoning of the Fourth

Circuit’s unpublished opinion and the numerous circuit courts

that hold similarly.

As to the “state-created danger” exception, “to establish §

1983 liability based on [this] theory, a plaintiff must show

that the state actor created or increased the risk of private

danger, and did so directly through affirmative acts, not merely

through inaction or omission.” Rosa, 795 F.3d at 439. “As

DeShaney makes clear, allowing continued exposure to an existing

danger by failing to intervene is not the equivalent of creating

or increasing the risk of that danger.” Id. at 439.

Plaintiff has not cited any facts to support an argument

that any state actors created or increased R.S.’s risk of

private danger at school. Instead Plaintiff argues that

“Defendants continues [sic] to fail to institute corrective

measures to prevent gaps in supervision.” (Pls.’ Resp. (Doc. 94)

at 18.) Accordingly, Plaintiff’s substantive due process claim

is “purely an omission claim, and no amount of semantics can

disguise the fact that the real affirmative act here was

committed” not by any state actors, but by M.C. See Rosa, 795

F.3d at 441 (cleaned up). In fact, as has been discussed at

length, school officials took many steps to decrease her risk,

including but not limited to, verbally reprimanding M.C.,

placing M.C. in another class, having a “safe-touch”

conversation with the kindergarteners, emphasizing the need for

supervision on the playground, and assigning specific staff

members to watch both R.S. and M.C. Ultimately, “[f]ailing to

provide protection from danger does not implicate the state in

the harm caused by third parties.” Stevenson, 3 F. App’x at 31.

Because Plaintiff has not put forth evidence that Defendant

Bivins violated either her right to equal protection or her

right to bodily integrity and personal security, the claim

against Bivins in her individual capacity must fail as a matter

of law. Accordingly, in the absence of a constitutional

violation by a state actor, neither supervisory liability

against Williams nor supervisory liability against Defendant

School Board may lie. See Temkin v. Frederick Cnty. Comm’rs, 945

F.2d 716, 724 (4th Cir. 1991) (finding no supervisory liability

“absent a finding of a constitutional violation on the part of

the person being supervised”); Grayson v. Peed, 195 F.3d 692,

697 (4th Cir. 1999) (explaining that where “there are no

underlying constitutional violations by any individual, there

can be no municipal liability”) (abrogated on other grounds). As

a result, this court grants Defendants’ Motion for Summary

Judgment as to Plaintiff’s § 1983 claims.

C. State Law Claims

Plaintiff R.S. also brings a state law claim of negligent

infliction of emotional distress against Defendant Board and

Defendant Bivins in her individual capacity, (TAC (Doc. 73) ¶¶

162–179), and a state law claim of negligent supervision and

retention against Defendant Board, (id. ¶¶ 180–192). Plaintiff

Fox brings a state law claim of parental loss of services and

companionship against Defendant Board. (Id. ¶¶ 193–195.)

These claims are before this court pursuant to supplemental

jurisdiction, as they arose from the same “case or controversy”

as Plaintiff’s § 1983 claims, see 28 U.S.C. § 1367(a), and are

based on a common set of facts, see United Mine Workers of Am.

v. Gibbs, 383 U.S. 715, 725 (1966) (requiring state and federal

claims to “derive from a common nucleus of operative fact”).

“The district courts may decline to exercise supplemental

jurisdiction over a claim” if “the district court has dismissed

all claims over which it has original jurisdiction.” 28 U.S.C. §

1367(c). This court has granted summary judgment as to all

federal claims and, after considering factors such as judicial

economy, convenience, fairness, and comity, it declines to

exercise supplemental jurisdiction. See Henderson v. Harmon, 102

F.4th 242, 251 (4th Cir. 2024) (“[G]enerally, when a district

court dismisses all federal claims in the early stages of

litigation — e.g., at the summary-judgment stage — it should

decline to exercise jurisdiction over any remaining pendent

state law claims by dismissing those claims without prejudice.”

(citations and internal quotation marks omitted)). Accordingly,

Plaintiff’s state law claims are dismissed without prejudice.

V. PLAINTIFF’S MOTION TO REDACT AND SUBSTITUTE FILED DOCUMENTS

On March 10, 2025, Plaintiffs moved this court to allow

“the redaction of certain information contained in the Court’s

docket” and “the removal of certain pages that were accidentally

filed with the Court which contain sensitive information and for

those same documents to be replaced with identical pages that

have been redacted.” (Doc. 138 at 1.) Specifically, Plaintiffs

state that the affidavits certifying service of deposition

notices found at Docket Entries 37 and 38, as well as the titles

of those Docket Entries, contain the names of the parents of a

non-party minor. (Id. at 1–2.) Plaintiffs contend that the

disclosure of non-party parents’ names could lead to the

discovery of the identity of the non-party minor. (Id. at 2.)

Plaintiffs seek to redact the non-party parents’ names, their

address, and replace their names in the docket entry titles with

their initials. (Id.) Defendants do not object.

Determining which standard governs the sealing of a

document depends on the characterization of the document itself.

Judicial records, which are documents that “play a role in the

adjucative process, or adjudicate substantive rights,” see In re

U.S. for an Ord. Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d

283, 290–91 (4th Cir. 2013), are governed by either the common

law right of access or the First Amendment right of access. See

Stone v. Univ. of Maryland Med. Sys. Corp., 855 F.2d 178, 180

(4th Cir. 1988) (explaining that “common law presumption in

favor of access attaches to all judicial records,” while “First

Amendment guarantee of access has been extended only to

particular judicial records” (citations and internal quotation

marks omitted)). But where “the court does not rely on a

document to reach its decision; the document is not a judicial

record and no right of access applies.” United States ex rel.

Thomas v. Duke Univ., No. 1:17-cv-276, 2018 WL 4211375, at *3

(M.D.N.C. Sept. 4, 2018). This court does not rely on the

affidavits of service at issue here to reach any decisions, thus

neither the common law nor First Amendment rights of access

apply.

Federal Rule of Civil Procedure 5.2(e)(1) permits a court

to order the redaction of information for “good cause.” Fed. R.

Civ. P. 5.2(e)(1). Plaintiffs’ claims involve sensitive

information regarding minors. The continued availability of the

names of those minors’ parents may allow the public to discover

the names of the minors. As such, this court finds that good

cause exists to grant Plaintiffs’ motion and permit the

substitution of the proposed redacted documents.

VI. CONCLUSION

Defendant’s Motion to Dismiss is denied, because it does

not comply with Local Civil Rule 7.3(a).

Defendant’s Motion for Summary judgment is granted as to

Plaintiff R.S.’s Title IX claim against Defendant School Board

because no reasonable jury could find that Defendant School

Board responded to Plaintiff’s report of sexual assault with

deliberate indifference.

Summary judgment is also granted as to Plaintiff R.S.’s §

1983 claims against Defendants Gonzalez and Whitted-Miller in

their individual capacities, because, having not addressed their

liability in her response, she has abandoned her claims against

them. Summary judgment is also granted as to Plaintiff’s § 1983

claim against Defendant Bivins in her individual capacity,

because no reasonable jury could find that Defendant Bivins

violated Plaintiff R.S.’s right to equal protection nor her

right to substantive due process. Because Plaintiff fails to put

forth evidence of a constitutional violation by Defendant

Bivins, her supervisory liability § 1983 claims against Williams

and Defendant School Board also fail.

As this court has granted summary judgment as to

Plaintiff’s two federal law claims, it declines to exercise

supplemental jurisdiction over Plaintiff R.S.’s and Plaintiff

Fox’s state law claims, and those claims are dismissed without

prejudice.

For the foregoing reasons, IT IS THEREFORE ORDERED that

Defendant’s Motion to Dismiss and Answer to Plaintiff’s Third

Amended Complaint, (Doc. 76), is DENIED.

IT IS FURTHER ORDERED that Defendants’ Motion for Summary

Judgment, (Doc. 82), is GRANTED and Plaintiffs’ Title IX claim

and § 1983 claims are DISMISSED. The remaining state law claims

are DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that Plaintiffs’ Motion in Limine,

(Doc. 114), Defendants’ Motion in Limine to Bifurcate, (Doc.

117), and Defendants’ Motion in Limine to Exclude Certain

Evidence, (Doc. 120), are DENIED AS MOOT.

IT IS FURTHER ORDERED that Plaintiffs’ Motion to Redact

Information and Substitute Filed Documents, (Doc. 138) is

GRANTED. The Clerk’s Office is instructed to substitute Docket

Entries 37 and 38 with the proposed redacted versions attached to

Plaintiffs’ motion (Docs. 138-1, 138-2, 138-3, 138-4). The

Clerk’s Office is additionally instructed to edit Docket Entry

37’s title by substituting subpoena target’s name with “C.R.” and

to edit Docket Entry 38’s title by substituting subpoena target’s

name with “R.R.”

This court will enter a judgment contemporaneously herewith.

However, this court retains jurisdiction to resolve Defendant’s

Motion to Show Cause and for Sanctions, (Doc. 127). The parties

are directed to confer and Defendants shall file a notice within

30 days advising whether a further order is necessary as whether

the motion is now moot.

This the 31st day of March, 2025.

bo Wi ptr L. Uebawe

United States District Judde

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