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

> District Court, M.D. North Carolina · March 31, 2025

URL: https://www.frixlaw.com/law-library/cases/10836007

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** March 31, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10836007

## How later opinions describe it (automated extraction)

- finding no supervisory liability “absent a finding of a constitutional violation on the part of the person being supervised”
- explaining that where “there are no underlying constitutional violations by any individual, there can be no municipal liability”
- 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)
- recognizing similarity between Title IX and equal protection “deliberate indifference” standards and referring to Title IX analysis in discussing equal protection claim

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10836007. Public record. Not legal advice.