Stepp v. Talihina Public School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF OKLAHOMA

AMBER STEPP and JONATHON STEPP, )

individually and as parents and next friends )

of J.S., a minor child, )

)

Plaintiffs, )

v. ) Case No. 6:24-cv-146-JAR

)

TALIHINA PUBLIC SCHOOL DISTRICT, et al., )

)

Defendants. )

OPINION AND ORDER

Plaintiffs Amber and Jonathon Stepp (the "Stepps"), individually and as

parents and next friends of J.S., a minor child, filed a complaint on April 23, 2024,

which they amended on May 30, 2024, and again on December 5, 2024. The second

amended complaint ("SAC") [Doc. 93]1 asserts fifteen claims against eleven

defendants for alleged violations of Title IX of the Education Amendments of 1972

("Title IX"), 20 U.S.C. § 1681 et seq., the First, Fifth, and Fourteenth Amendments to

the U.S. Constitution pursuant to 42 U.S.C. § 1983 ("§ 1983"), the Equal Educational

Opportunities Act of 1974 ("EEOA"), 20 U.S.C. § 1701 et seq., and Oklahoma law.

Before the court is the renewed joint motion to dismiss ("Motion") [Doc. 100]

filed on behalf of ten defendants:2 Independent School District No. 52 of LeFlore

County, Oklahoma, commonly known as Talihina Public School District ("TPSD");

1 For clarity and consistency herein, when the court cites to the record, it uses the pagination

and document numbers provided by CM/ECF.

2 The eleventh defendant, Kevin McClain ("McClain"), filed a separate motion to dismiss the

SAC on December 26, 2024. [Doc. 101]. On April 17, 2025, the court entered an Order granting in part

and denying in part McClain's dismissal motion. [Doc. 124].

Jason Lockhart, in his individual capacity as TPSD's superintendent and as a

member of the TPSD Board of Education (the "Board"); Kathy Anderson, in her

individual capacity as the principal of Talihina Elementary; Bill Blair, in his

individual capacity as a teacher and Title IX officer for Talihina Elementary; Rusty

Blue, in his individual capacity as a Board member; Tracy Bryant, in his individual

capacity as a teacher and Title IX officer for Talihina Elementary; Leslie Crank, in

his individual capacity as a member and clerk of the Board; Courtney Moreland, in

her individual capacity as a Board member; Scottie Russell, in his individual capacity

as a member and president of the Board; and Steve Woods, in his individual capacity

as a member and vice president of the Board. The Motion seeks dismissal of the SAC

pursuant to Fed. R. Civ. P. 12(b)(6) and 8(a), the doctrine of qualified immunity, and

the Oklahoma Governmental Tort Claims Act ("GTCA"), 51 Okla. Stat. ("O.S.") § 151

et seq. Plaintiffs filed a response opposing the Motion [Doc. 105], and the moving

defendants timely replied [Doc. 111].

I. BACKGROUND

A. PLAINTIFFS' ALLEGATIONS

At the time of the events in question, J.S. was an eleven-year-old student

enrolled in the fifth grade at Talihina Elementary. [Doc. 93, ¶ 31].3 Beginning in

August 2022 and at the direction of TPSD's superintendent, defendant Jason

Lockhart ("Supt. Lockhart" or "Lockhart"), and the Talihina Elementary principal,

3 TPSD is a political subdivision and body corporate of the State of Oklahoma, duly created

and charged with the operation of Talihina Elementary School. [Id. ¶ 2 (citing 70 O.S. §§ 1-108, 5-101,

5-103, 5-105)].

defendant Kathy Anderson ("Principal Anderson" or "Anderson"), fifth-grade

students were segregated into two classes solely on the basis of gender. The all-boys

class was taught by defendant McClain, and the all-girls class was taught by a female

teacher. [Id. ¶¶ 21-22, 30]. This policy left fifth-grade students at Talihina

Elementary with no option but to attend gender-segregated classes. [Id. ¶ 33]. The

members of TPSD's Board—defendants Blue, Crank, Lockhart, Moreland, Russell,

and Woods (the "Board Members")—were aware of the segregation policy and either

explicitly or tacitly approved of the same. [Id. ¶ 23].

During the first week of the 2022-2023 school year—the week of August 16—

McClain frequently yelled at J.S. and his classmates. During the second week of

school—the week of August 22—McClain began targeting J.S. in several ways,

including berating J.S. until he was reduced to tears and prohibiting J.S. from leaving

the classroom when he reportedly felt unwell despite allowing another student to do

so three separate times for the same reason. On August 24, a concerned parent of

another fifth-grade boy contacted Mrs. Stepp regarding McClain's use of derogatory

and harassing language during class. Mr. Stepp met with Supt. Lockhart the

following day to report McClain's treatment of J.S. and to raise concerns about his

son's safety and well-being at school. TPSD responded by placing a "hall monitor"

outside McClain's classroom to observe teacher-student interactions. [Id. ¶¶ 34-42].

While this hall monitor was purportedly on duty, McClain raised additional

inappropriate topics with his students, including but not limited to encouraging

discussions about kissing girls, instructing his students not to draw male genitalia

because J.S. was "queer" and, after witnessing J.S. playfully roughhouse with friends,

instructing his students to yell "f*g alert" upon unwanted contact from classmates.

[Id. ¶¶ 43-45]. J.S. subsequently informed his father a classmate had advised that

the next time McClain called him "queer," J.S. should respond by calling McClain a

different homophobic slur. Mr. Stepp, shocked by this language, explained the

meaning of these slurs to J.S.—who immediately began to cry and question why a

teacher would call him those names. [Id. ¶¶ 50-52].4 On or around the same date Mr.

Stepp learned of McClain's name-calling, Mrs. Stepp separately learned of the same

from a concerned grandparent of another fifth-grade boy. [Id. ¶ 55].

During a subsequent phone call with the Stepps, McClain admitted to yelling

at his class, using the phrase "f*g alert," and discussing male genitalia with his fifth-

grade students in a manner that targeted J.S. [Id. ¶¶ 46, 62-63]. McClain further

acknowledged that his conduct was generally inappropriate for fifth-grade students,

and that he would not have used certain terms or raised certain topics had fifth-grade

girls been present. Soon thereafter, the Stepps informed Principal Anderson of their

intent to file a formal complaint against McClain. Upon information and belief,

multiple defendants—including Lockhart, McClain, Anderson and Talihina

Elementary's then-designated Title IX officer, Rebecca McLemore5 ("McLemore")—

privately discussed the Stepp's concerns about McClain's behavior and coordinated a

responsive strategy for the imminent Title IX complaint. [Id. ¶¶ 64-65].

4 When Mr. Stepp met with Supt. Lockhart on or about August 25, 2022, he was not yet aware

of McClain’s targeted use of discriminatory slurs. [Id. ¶ 49].

5 Plaintiffs voluntarily dismissed Rebecca McLemore as a defendant to this action by way of

omitting her from the caption page of their SAC. Compare [Doc. 12 at 1] with [Doc. 93 at 1].

On or about August 29, 2022, the Stepps met with Lockhart, McClain, and

McLemore to gather pertinent information regarding the Title IX process and TPSD's

grievance procedures. Lockhart prohibited McLemore from speaking during this

meeting and the Stepps received little, if any, information on how to file a formal Title

IX complaint. [Id. ¶¶ 66-67, 69]. McLemore contacted Mrs. Stepp directly after the

meeting to apologize and recommend that the Stepps complete an Alleged Sexual

Harassment Form ("Form"). The Stepps submitted a completed Form that same day,

and TPSD officials treated said Form as a formal complaint of sexual harassment

under Title IX. [Id. ¶¶ 71-73]. Other than being pointed to the Form, the Stepps

received no instruction concerning Talihina Elementary's grievance process or its

procedure for resolving formal complaints under Title IX. [Id. ¶ 76].6

On the same day the Stepps submitted the Title IX complaint, TPSD removed

J.S. from the all-boys class but refused to remove McClain from the same pending

resolution of the Title IX investigation. [Id. ¶¶ 94-97]. Eventually, Principal Anderson

worked with the Stepps to create a modified school schedule wherein J.S. would

attend the Language Arts class for one period and would, for the remainder of the

school day, be kept alone in the library. [Id. ¶ 100]. The Stepps had no choice but to

accept Anderson's modified schedule proposal, as they had refused an offer to place

J.S. in the all-girls class due to concerns such a placement would further stigmatize

and ostracize their son. [Id. ¶¶ 99, 101]. While the Title IX investigation was ongoing,

6 Because TPSD officials failed to provide the Stepps with any notice of their rights as Title IX

complainants, the Stepps were never informed as to the identity of the Title IX coordinator designated

by Talihina Elementary and were unaware of their right to retain an advisor to assist in navigating

the Title IX process. [Doc. 93, ¶¶ 82, 84].

J.S. received little to no general instruction from teachers and received none of the

special education support provided for in his Individual Education Plan ("IEP"). [Id.

¶¶ 100, 102, 105]. J.S.'s grades dropped as a result, and TPSD deemed him ineligible

to participate in extracurricular activities—such as basketball. [Id. ¶¶ 103-04]. At

some point between August 29 and October 12, the Stepps decided J.S. would receive

a better education if he were homeschooled and withdrew their son from Talihina

Elementary. [Id. ¶ 336; Doc. 93-3 at 2].

On or about August 30, 2022, McLemore met with Principal Anderson to

discuss matters concerning the Title IX investigation. During this meeting, Anderson

confirmed she would provide McLemore with notes summarizing her communications

with Supt. Lockhart and McClain regarding the Stepp's complaint. [Doc. 93, ¶¶ 107-

08]. On September 1, however, Anderson refused to provide McLemore with any notes

memorializing her admitted conversations with Lockhart and McClain. According to

a Title IX "Contact Sheet" completed by McLemore, Anderson and Lockhart had

privately determined Principal Anderson's notes and recollection were irrelevant to

the investigation. [Id. ¶¶ 112-13]. McLemore abruptly resigned as a Title IX officer

the following week, stating: "[I]t is very apparent to me that I am not qualified to

fulfill this position. I believe to continue in this role would set me in a place of ethical

and professional liability." [Id. ¶¶ 118-19].

On September 6, 2022, the Stepps attended a public meeting of the Board and,

along with other parents and guardians of students in the all-boys class, presented

their concerns regarding McClain's behavior and TPSD's ongoing segregation policy.

The Board Members heard the Stepp's presentation but asked no questions, made no

comments, and offered no solutions. After the meeting, the Board Members declined

to take any action relating to McClain's alleged behavior or the school district's

segregation policy. [Id. ¶¶ 115-17]. At this point, the Stepps had yet to receive any

instruction on TPSD's policies governing sexual harassment grievance procedures

and the Title IX process. Upon information and belief, TPSD maintained no such

policies and additionally failed to provide Title IX training to any school employees—

including designated Title IX officers. [Id. ¶¶ 90-92, 194].

Following McLemore's resignation on September 8, 2022, TPSD designated

defendants Bill Blair ("Blair") and Tracy Bryant ("Bryant") as Talihina Elementary's

new Title IX officers. [Id. ¶ 121]. Blair and Bryant quickly completed the Title IX

investigation without interviewing plaintiffs or any parents of other fifth-grade boys

who reported McClain for misconduct. [Id. ¶¶ 121-29]. Because the Stepps neither

received a copy of the school district's Title IX policy nor any notice of their rights

under Title IX, they were unaware of their right to inspect and review evidence

gathered before issuance of an investigative report. [Id. ¶ 86]. Mr. Stepp simply

received a call from Principal Anderson on September 17 notifying him the

investigation was closed, that no further information would be provided, and that J.S.

may immediately return to McClain's all-boys class. [Id. ¶¶ 133, 136].

Unbeknownst to the Stepps at the time, on September 29, the Oklahoma State

Department of Education ("OSDE") issued a letter to TPSD and Lockhart advising

that Talihina Elementary's policy of segregating fifth-grade classes on the basis of

gender violated federal civil rights laws, including Title IX, and directing integration

of fifth-grade classes by no later than October 10, 2022. [Id. ¶¶ 138-41; Doc. 93-3]. In

response to questions from aggravated parents regarding the forced integration,

Anderson name-dropped plaintiffs, pressed her view that their allegations against

McClain were unsubstantiated, and lamented that plaintiffs had caused an unwanted

disruption by contacting OSDE. In a meeting with Mr. Stepp on October 10, Anderson

accused those parents of lying about her above-mentioned communications. She also

contended that Mr. Stepp was a "liar" and accused plaintiffs of "inciting" and

"encouraging" violence against Talihina Elementary. [Doc. 93, ¶¶ 147-52].

J.S. returned to his first full day of integrated classes on October 12, 2022. For

at least two of his afternoon classes, Blair—who was also a fifth-grade social studies

teacher—required J.S. to sit alone on the floor despite a desk being available. [Id. ¶

333]. The following week, Mr. Stepp approached Blair during J.S.'s basketball game

to inquire about his son being forced to sit on the floor. [Id. ¶ 159]. In response, Blair

engaged in a public, defamatory, profanity-laced tirade against plaintiffs and

threatened physical violence. [Id. ¶ 160 (e.g., "Why don't you just bring you're a**

outside?" and "You just need to keep your f*cking mouth shut" and "[J.S.] is a liar.")].

Blair and his family members were eventually escorted from the gym by school

officials and lingered outside for some time. The Stepp family exited through a back

door so as to avoid further confrontation. [Id. ¶ 162-64]. Following the 2022-2023

school year, the Stepps withdrew their children from Talihina Elementary—the only

public school in their vicinity—because they felt they could not safely report sexual

harassment or bullying if and/or when such issue arose in the future. To date, J.S.

and his four younger siblings remain homeschooled. [Id. ¶¶ 167-69].

B. SUMMARY OF PERTINENT PLEADINGS

On March 4, 2025, the court held an in-person hearing and heard oral

arguments from all parties on the pending dismissal pleadings. See [Doc. 120]. At the

hearing, counsel for plaintiffs voluntarily abandoned the EEOA claim (Count Eight)

in its totality and the defamation claim (Count Twelve) as asserted against TPSD.

[Id.]. The SAC accordingly asserts thirteen operative counts against the moving

defendants, seeking relief in the form of actual and punitive damages:

Count One alleges a sex-segregation claim under Title IX, asserting

that TPSD violated J.S.'s statutory right to be free from gender

discrimination by implementing a policy to segregate fifth grade

students at Talihina Elementary on the basis of sex;

Count Two alleges a sexual harassment claim under Title IX, asserting

that TPSD violated J.S.'s statutory right to be free from sexual

harassment by failing to act against McClain's known pattern of

harassment toward J.S.;

Count Three alleges a retaliation claim under Title IX, asserting that

TPSD retaliated against plaintiffs for filing a Title IX complaint by

engaging in acts to interfere with plaintiffs' statutory and constitutional

rights under the Title IX process;

Count Four alleges a municipal liability claim under § 1983, asserting

that TPSD violated J.S.'s statutory rights under Title IX and his

constitutional rights to equal protection, procedural due process, and

substantive due process by adopting, implementing, and enforcing an

official policy of gender-based segregation;

Count Five appears to allege supervisory liability claims under § 1983,

asserting that Anderson and the Board Members violated J.S.'s

statutory rights under Title IX and constitutional rights to equal

protection, procedural due process, and substantive due process by

ratifying and enforcing TPSD's unlawful segregation policy;

Count Six alleges retaliation claims under § 1983, asserting that

Anderson, Blair, and Bryant retaliated against plaintiffs for filing a

Title IX complaint and for criticizing their deficient Title IX

investigation by engaging in acts to interfere with plaintiffs' statutory

and constitutional rights under the Title IX process;

Count Seven alleges a conspiracy claim under § 1983, asserting that

all moving defendants entered into an agreement to deprive plaintiffs of

their constitutional and statutory rights under the Title IX process;

Count Nine alleges retaliation claims under § 1983, asserting that

TPSD and the Board Members retaliated against plaintiffs for filing a

Title IX complaint by engaging in acts to interfere with plaintiffs'

statutory and constitutional rights under the Title IX process;

Count Ten alleges claims for negligence, negligent supervision and

negligence per se, asserting that TPSD and the Board Members

breached four basic duties owed to J.S. under Oklahoma law;

Count Twelve alleges defamation claims under Oklahoma law,

asserting that Anderson and Blair knowingly made false statements

about plaintiffs to third parties;

Count Thirteen alleges a gender discrimination claim under

Oklahoma law, asserting that TPSD, Lockhart, Anderson and Blair

required or made part of J.S.'s curriculum certain discriminatory

principles prohibited by 70 O.S. § 24-157;

Count Fourteen alleges an assault claim under Oklahoma law,

asserting that Blair physically rushed the Stepps during an elementary

school basketball game, threatened them with immediate physical

harm, made assaulting remarks, and recruited others to join his actions;

Count Fifteen alleges a civil conspiracy claim under Oklahoma law,

asserting that all moving defendants entered into an agreement to

deprive plaintiffs of statutory protections under Title IX and 70 O.S. §

24-157.

The moving defendants filed their Motion on December 19, 2024. In their

Motion, they argue that Counts One and Two are legally deficient and subject to Rule

12(b)(6) dismissal; Counts Three, Four, Five, Six, Seven, Nine, and Fifteen are not

remotely supported by factual allegations and should be dismissed for failure to state

a claim; the individual moving defendants are entitled to qualified immunity on

plaintiffs' § 1983 claims; Count Thirteen must be dismissed because there is no

private right of action under 70 O.S. § 24-157; all moving defendants are entitled to

immunity under the GTCA on plaintiffs' state law claims; and Counts Twelve and

Fourteen are barred by the applicable limitations period.

II. STANDARD FOR MOTIONS TO DISMISS

Dismissal pursuant to Rule 12(b)(6) "'is appropriate if the complaint alone is

legally insufficient to state a claim.'" Serna v. Denver Police Dep't, 58 F.4th 1167,

1169 (10th Cir. 2023) (quoting Brokers' Choice of Am., Inc. v. NBC Universal, 861

F.3d 1081, 1104-05 (10th Cir. 2017)). When considering whether a claim should be

dismissed under Rule 12(b)(6), the court accepts all well-pleaded factual allegations

as true and views them in the light most favorable to the plaintiff as the nonmoving

part. S.E.C. v. Shields, ("Shields") 744 F.3d 633, 640 (10th Cir. 2014). All that is

required is "a short and plain statement of the claim showing that the pleader is

entitled to relief." Fed. R. Civ. P. 8(a)(2). The complaint must, however, contain

"enough facts to state a claim to relief that is plausible on its face" and "raise a right

to relief about the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570

(2007). "A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged." Shields, 744 F.3d at 640 (quoting Ashcroft v. Iqbal ("Iqbal"), 556

U.S. 662, 678 (2009)). "[T]he tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions" and

"whether a complaint states a plausible claim for relief will . . . be a context-specific

task that requires the reviewing court to draw on its judicial experience and common

sense." Iqbal, at 678-79. The Tenth Circuit has observed that the Twombly/Iqbal

pleading standard is intended to "ensure[ ] that defendants know 'the actual grounds

of the claim against them,'" in order for defendants to "prepare a defense." Bryson v.

Gonzalez, 534 F.3d 1282, 1287 (10th Cir. 2008). In the context of § 1983 actions

involving multiple claims against multiple defendants, the Tenth Circuit has further

stated that "it is particularly important" for a complaint to "make clear exactly who

is his alleged to have done what to whom" so that each defendant has "fair notice as

to the basis of the claims" against them. Robbins v. Oklahoma, 519 F.3d 1242, 1250

(10th Cir. 2008) (emphasis in original) (citation omitted).

III. CLAIMS FOR VIOLATIONS OF TITLE IX

Plaintiffs asserts three causes of action against TPSD under Title IX, alleging

gender discrimination (Count One), sexual harassment (Count Two), and retaliation

(Count Three). Title IX prohibits educational institutions that receive federal

assistance from engaging in discrimination on the basis of sex. See 20 U.S.C. §

1681(a). Congress enacted Title IX with two principal objectives in mind: "[T]o avoid

the use of federal resources to support discriminatory practices" and "to provide

individual citizens effective protection against those practices." Cannon v. Univ. of

Chicago, 441 U.S. 677, 704 (1979). Thus, the Supreme Court has recognized an

implied private right of action to enforce Title IX against a recipient of federal

education funds. See id. at 717; see also Franklin v. Gwinnett Cty. Pub. Schs., 503

U.S. 60, 76 (1992) (holding a damages remedy is available for an action brought by

private parties to enforce Title IX).

A. COUNT ONE | GENDER SEGREGATION

To state a Title IX claim for gender segregation, a plaintiff must allege facts

showing: (1) that he or she was excluded from participation in, denied the benefits of,

or subjected to discrimination in an educational program; (2) that the program

receives federal assistance; and (3) that the exclusion from the program was on the

basis of sex. Seamons v. Snow, 84 F.3d 1226, 1231 (10th Cir. 1996) (citations omitted).

Count One arises from allegations that TPSD, as a program that receives federal

funds conditioned upon compliance with Title IX, unlawfully discriminated against

J.S. by implementing a policy providing for fifth-grade classes separately at Talihina

Elementary on the basis of sex, and by requiring and refusing student participation

in classes on the basis of sex. TPSD contends Count One should be dismissed under

Rule 12(b)(6) because plaintiffs fail to allege facts involving any sexual harassment

of J.S. by a school employee. [Doc. 100 at 15]. Such contention is irrelevant, however,

as Count One arises from allegations of gender segregation rather than sexual

harassment. As for the claim asserted, plaintiffs focus primarily on the conceded fact

that TPSD segregated fifth-grade classes at Talihina Elementary explicitly on the

basis of sex. TPSD's purported conduct is directly prohibited by Title IX. See 20 U.S.C.

§ 1681(a). The court concludes that plaintiffs have sufficiently alleged facts to state a

plausible Title IX claim against TPSD for discrimination on the basis of gender. The

court denies TPSD’s Motion as to Count One.

B. COUNT TWO | DELIBERATE INDIFFERENCE TO TEACHER-ON-

STUDENT SEXUAL HARASSMENT

Sexual harassment is a form of discrimination on the basis of sex and is

actionable under Title IX. Escue v. N. Okla. College, 450 F.3d 1146, 1152 (10th Cir.

2006). A school district that receives federal funds is not vicariously liable to its

students for all sexual harassment caused by teachers, but a student may hold a

school liable for its own misconduct. Forth v. Laramie Cty. Sch. Dist. No. 1, 85 F.4th

1044, 1053 (10th Cir. 2023) (citations omitted). A student seeking relief under this

theory must demonstrate:

(1) an appropriate person . . . with authority to take corrective action to

end the discrimination (2) had actual knowledge of discrimination in the

recipient’s programs but (3) fail[ed] adequately to respond in a manner

amounting to deliberate indifference, and (4) the harassment was so

severe, pervasive and objectively offensive that it . . . deprived the victim

of access to the educational benefits or opportunities provided by the

school.

Id. (alterations in original) (citations and quotations omitted). TPSD contends that

Count Two should be dismissed under Rule 12(b)(6) because plaintiffs cannot prevail

on the second and third elements.

As to the second element, TPSD asserts the SAC fails to allege facts showing

the school district was deliberately indifferent to McClain's "known" sexual

harassment. [Doc. 100 at 16]. But the SAC clearly alleges facts indicating TPSD had

actual notice of McClain's harassment of J.S. by August 25, 2022. [Doc. 93, ¶¶ 34-41].

Despite placing a school official outside McClain's classroom to monitor for

inappropriate behavior, plaintiffs allege McClain's harassment of J.S. continued

without any administrative intervention. [Id. ¶¶ 42-45]. After meeting with Supt.

Lockhart, Principal Anderson, McClain, and McLemore on August 29, 2022, plaintiffs

submitted a Title IX complaint against McClain. [Id. ¶¶ 71-74]. These factual

allegations permit an inference that TPSD, by and through appropriate persons with

authority to take corrective action, had actual knowledge of McClain's purported

harassment of J.S. prior to the filing of plaintiffs' complaint.

Turning to the third element, TPSD contends the SAC fails to allege facts

showing the school district was "deliberately indifferent" to McClain's alleged conduct

because TPSD designated multiple employees to investigate plaintiffs' complaint.

[Doc. 100 at 16-17]. "Deliberate indifference exists where the response to the

harassment or lack thereof is clearly unreasonable in light of the known

circumstances." Forth, 85 F.4th at 1069 (internal citations and quotations omitted).

The SAC alleges that, because TPSD neither had a policy prohibiting gender

discrimination nor a grievance procedure for resolving Title IX complaints, school

officials undertook an impromptu, biased, and deficient investigation which was

clearly unreasonable under the circumstances. [Id. ¶¶ 193-94]. This otherwise

conclusory assertion is supported by the following factual allegations: Lockhart and

Anderson refused to provide plaintiffs with any information regarding the Title IX

process or their rights thereunder [Id. ¶¶ 66-67]; as a designated Title IX officer,

McLemore admittedly was unfamiliar with relevant grievance procedures [Id. ¶¶ 70-

71]; Anderson withheld pertinent information from McLemore during the Title IX

investigation [Id. ¶¶ 108-113]; TPSD officials withheld information requested by

plaintiffs throughout the Title IX process [Id. ¶¶ 77, 81-92]; following McLemore's

resignation, the newly designated Title IX officers—Blair and Bryant—failed to

interview J.S., his parents, or any students in the all-boys class [Id. ¶¶ 123-24]; and

Anderson wrongfully disclosed plaintiffs' identities as the Title IX complainants to

other parents of Talihina Elementary students [Id. ¶ 147].

Although "the minimum required response to avoid 'deliberate indifference'" is

"a legitimate investigation," Lang v. Herrara, No. 12-CV-392-JHP-TLW, 2013 WL

4500739 at *5 (N.D. Okla. Aug. 21, 2013), it would be unreasonable to view TPSD's

purported response as "legitimate." The court finds the alleged acts and omissions

attributed to TPSD in Count Two to be "clearly unreasonable in light of the known

circumstances." Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 643 (1999). As

plaintiffs' allegations permit an inference that TPSD was deliberately indifferent in

its response to their sexual harassment complaint, the court concludes that plaintiffs

have stated a plausible Title IX claim against TPSD for deliberate indifference to

sexual harassment. The court denies TPSD's Motion as to Count Two.

C. COUNT THREE | RETALIATION UNDER TITLE IX

"Retaliation against a person because that person has complained of sex

discrimination is another form of intentional discrimination encompassed by Title

IX’s private cause of action." Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173

(2005). To state a claim for retaliation under Title IX, plaintiffs must allege facts

showing (1) they engaged in protected opposition to discrimination, (2) a reasonable

person would have found the challenged action materially adverse, and (3) a causal

connection existed between the protected activity and the materially adverse action.

Id. at 173-74. TPSD challenges only the second prong under Rule 12(b)(6), arguing

that none of plaintiffs' allegations amount to a response which a reasonable person

would interpret as materially adverse or as an act which would chill a reasonable

individual from continuing to engage in protected conduct. [Doc. 100 at 25].

The SAC plainly asserts that TPSD, by and through the conduct of school

officials, undertook actions in response to the Stepp's Title IX complaint that were

intended to be, and in fact were, materially adverse to plaintiffs' protected interests.

Specifically, plaintiffs allege that TPSD removed J.S. from McClain's classroom—

over the Stepp's objections and without providing an equitable educational

alternative—immediately following the Stepp's submission of the Title IX complaint

[Doc. 93, ¶ 1, 94-98, 102-05]; Anderson unlawfully disclosed to third parties plaintiffs'

identities as the complainants [Id. ¶ 148];7 Anderson and Blair circulated defamatory

statements about plaintiffs in relation to the Title IX complaint and underlying

allegations [Id. ¶¶ 147, 149, 152, 160]; and, following his contribution to the

purportedly deficient Title IX investigation, Blair assaulted the Stepps at a school

function after forcing J.S. to sit alone on a classroom floor despite a desk being

available [Id. ¶¶ 153-60]. Accordingly, the court concludes plaintiffs have stated a

plausible Title IX retaliation claim against TPSD. The court denies the school

district’s Motion as to Count Three.

7 Plaintiffs correctly note that Anderson's purported disclosures directly violate Title IX's rules

on retaliation. [Doc. 105 at 16 (citing 34 C.F.R. § 106.71(a))]. See also 34 C.F.R. §§ 106.45(b)(5), (7).

IV. CLAIMS FOR § 1983 VIOLATIONS

Plaintiffs assert five causes of action under § 1983, alleging municipal liability

(Count Four), supervisory liability (Count Five), conspiracy (Count Seven), and

retaliation (Counts Six and Nine).

A. INTRODUCTION

A successful § 1983 plaintiff must show: (1) that a right secured by the

Constitution or laws of the United States was violated, and (2) that the alleged

violation was committed by a person acting under color of state law. West v. Atkins,

487 U.S. 42, 48 (1988). The moving defendants do not dispute that they were acting

under color of state law; thus, the key issue is whether plaintiffs have sufficiently

alleged the purported constitutional deprivations.

1. Preemption

To the extent plaintiffs purport to hold any of the moving defendants liable

under § 1983 for violations of their statutory rights under Title IX, plaintiffs are

precluded from doing so pursuant to the comprehensive remedies available under

Title IX. See Seamons, 84 F.3d at 1233 ("When the remedial devices provided in a

particular Act are sufficiently comprehensive, they may suffice to demonstrate

congressional intent to preclude the remedy of suits under § 1983.") (quoting

Middlesex Cty. Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 20 (1981)).

2. Distinction Between Individual and Official Capacity Claims

As noted, plaintiffs seek to hold the individual moving defendants liable under

§ 1983 in their individual (or personal) capacities only. "Personal capacity suits seek

to impose personal liability upon a government official for actions he takes under

color of state law. Official-capacity suits, in contrast, generally represent only another

way of pleading an action against an entity of which an officer is an agent." Kentucky

v. Graham (“Graham”), 473 U.S. 159, 165-66 (1985). "[W]hile an award of damages

against an official in his personal capacity can be executed only against the official's

personal asserts, a plaintiff seeking to recover on a damages judgment in an official

capacity suit must look to the government entity itself." Id. at 166.

On the merits, to establish personal liability in a § 1983 action, it is enough to

show that the official, acting under color of state law, caused the deprivation of a

federal right. Id. Thus, to hold the individual defendant liable under § 1983 in his or

her individual capacity, plaintiffs must allege facts to establish each defendant's

personal involvement in the purported deprivation. See Schneider v. City of Grand

Junction Police Dep't, 717 F.3d 760, 768 (10th Cir. 2013). More is required to establish

official capacity liability, however, "for a [municipality] is liable under § 1983 only

when the entity itself is a 'moving force' behind the deprivation; thus, in an official

capacity suit the entity's 'policy or custom' must have played a part in the violation

of federal law." Graham, 473 U.S. at 166 (internal citations omitted). With this

distinction in mind, it is clear that plaintiffs' § 1983 claims against the individual

defendants in their personal capacities cannot lead to imposition of fee liability upon

TPSD. See id. at 167. Such a result would be inconsistent with the well-settled

principle that "a municipality cannot be held liable under § 1983 on a respondeat

superior theory." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978).8

3. Qualified Immunity

The individual moving defendants are entitled to assert, and have asserted,

the defense of qualified immunity as to all four § 1983 claims pending against them.

See Maresca v. Bernalillo Cty., 804 F.3d 1301, 1307 (10th Cir. 2015) ("An official [sued

in their individual capacity] may plead an affirmative defense of qualified

immunity."). "Qualified immunity protects officials from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known." Thomas v. Kaven, 765 F.3d

1183, 1194 (10th Cir. 2014) (internal quotation marks omitted). When a defendant

asserts qualified immunity at the motion to dismiss phase, the plaintiff "must allege

facts sufficient to show (assuming they are true) that the [1] defendant plausibly

violated their constitutional rights, and that [2] those rights were clearly established

at the time" of the defendant's alleged conduct. Robbins, 519 F.3d at 1249.9 The court

8 At its outset, the SAC notes that, "[i]n omitting from this amended complaint their official

capacity claims against the individual defendants, [p]laintiffs have relied on the position of

[d]efendants, including TPSD itself, that TPSD is the proper entity against which to bring their official

capacity claims, that TPSD has capacity to sue and be sued on these claims, and that [p]laintiffs' prior

official capacity claims against the individual [d]efendants merely duplicated the claims against

TPSD." [Doc. 93 at 1 & n.2 (citing Doc. 29 at 13-14)]. While a § 1983 claim asserted against a school

district and one or more school employees sued in their official capacity is unnecessarily duplicative,

it is well-settled that a defendant school district cannot be held liable under a § 1983 claim asserted

only against one or more school employees in their individual capacity. Conversely, a defendant

school district can be subject to liability on a § 1983 claim asserted only against one or more school

employees in their official capacity.

9 A clearly established right is one that is "sufficiently clear that every reasonable official would

have understood that what he is doing violates that right." Mullenix v. Luna, 577 U.S. 7, 11 (2015)

(per curiam) (quotations omitted). A relevant Supreme Court or Tenth Circuit decision is alone

sufficient to establish a right for purposes of qualified immunity. A.N. v. Syling, 928 F.3d 1191, 1197

(10th Cir. 2019).

may assess these two inquiries in any order. See Pearson v. Callahan, 555 U.S. 223,

236 (2009). In making this assessment, the court must construe the SAC in the light

most favorable to plaintiffs, accept all well-pleaded allegations as true, and draw all

reasonable inferences in plaintiffs' favor. See Bella v. Chamberlain, 24 F.3d 1251,

1254 (10th Cir. 1994). If plaintiffs fail to satisfy either prong, the court must grant

qualified immunity. See Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2011).

4. § 1983 Claims for Equal Protection Violations

The Fourteenth Amendment prohibits States from denying "any person within

its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Denials

of equal protection by a municipal entity or any other person acting under color of

state law are actionable under § 1983. Murrell v. Sch. Dist. No. 1, Denver, 186 F.3d

1238, 1249 (10th Cir. 1999). Different types of equal protection claims call for

different forms of review. A claim that a state actor discriminated on the basis of a

suspect (e.g., race), quasi-suspect (e.g., gender), or non-suspect classification calls for

strict, intermediate, or rational basis scrutiny—respectively. Brown v. Montoya

("Montoya"), 662 F.3d 1152, 1172 (10th Cir. 2011). But in each instance, "to assert a

viable equal protection claim, plaintiffs must first make a threshold showing that

they were treated differently from others who were similarly situated to them."

Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998). "One who alleges such an

equal protection violation has the burden of proving the existence of purposeful

discrimination causing an adverse effect." Ashaheed v. Currington, 7 F.4th 1236,

1250 (10th Cir. 2021). Conclusory allegations without facts that refer to a particular

person or persons treated differently are insufficient to state a claim. Montoya, 662

F.3d at 1173. Moreover, to permit municipal liability for an alleged equal protection

violation, the complaint must plausibly suggest the plaintiff's injuries were the result

of a discriminatory policy. Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127,

1146 (10th Cir. 2023).

5. § 1983 Claims for Procedural Due Process Violations

The Fourteenth Amendment also forbids States from depriving an individual

of life, liberty, or property without due process of law. Coutoure v. Bd. of Educ. of

Albuquerque Pub. Schs., 535 F.3d 1243, 1256 (10th Cir. 2008). However, "the range

of interests protected by the procedural due process clause is not infinite." Bd. of

Regents v. Roth ("Roth"), 408 U.S. 564, 570 (1972). The procedural due process clause,

however, does not safeguard an infinite number of interests; rather "[a] person

alleging that he has been deprived of his right to procedural due process must prove

two elements: [1] that he possessed a constitutionally protected liberty or property

interest such that the due process protections were applicable, and [2] that he was

not afforded an appropriate level of process." Coutoure, 535 F.3d at 1256 (citing Roth,

408 U.S. at 570) (add'l citations omitted).

6. § 1983 Claims for Substantive Due Process Violations

In certain limited circumstances, the State is obligated not just to limit its own

deprivations of liberty and property interests, but to affirmatively "ensure that those

interests do not come to harm through other means." Rost v. Steamboat Springs RE-

2 Sch. Dist., 511 F.3d 1114, 1125-26 (10th Cir. 2008). When government conduct does

not touch on a fundamental right, a cognizable due process claim exists only where

the conduct is so egregious that it "shocks the conscience." Seegmiller v. LaVerkin

City, 528 F.3d 762, 767 (10th Cir. 2008). Conduct that shocks the judicial conscience

"is deliberate government action that is 'arbitrary' and 'unrestrained by the

established principles of private right and distributive justice.'" Id. (quoting Cty. of

Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). This "requires a high level of

outrageousness, because the Supreme Court has specifically admonished that a

substantive due process violation requires more than an ordinary tort[.]" Perez v.

Unified Gov't of Wyandotte Cty., 432 F.3d 1163, 1168 & n.4 (10th Cir. 2005). Whether

conduct shocks the conscience is a question of law for the court. Id.

B. COUNT FOUR | MUNICIPAL LIABILITY

Municipal liability of a governmental entity, such as TPSD, does not arise

under § 1983 "for an injury inflicted solely by its employees or agents." Monell, 436

U.S. at 694. Liability may only be imposed upon a governmental entity "when the

enforcement of [its] policies or customs by [its] employees causes a deprivation of a

person's federally protected rights." Dodds v. Richardson, 614 F.3d 1185, 1202 (10th

Cir. 2010). To state a §1983 claim for municipal liability, a plaintiff must allege: "(1)

that a municipal employee committed a constitutional violation, and (2) that a

municipal policy or custom was the moving force behind the constitutional

deprivation." Myers v. Okla. Cty. Bd. of Cty. Comm'rs, 151 F.3d 1313, 1316 (10th Cir.

1998). An entity cannot be held liable under § 1983 "unless deliberate action

attributable to the municipality itself is the 'moving force' behind the plaintiff’s

deprivation of federal rights." Bd. of Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520

U.S. 397, 403 (1997). As to the first element, the court finds that plaintiffs have

sufficiently alleged an official policy maintained by TPSD of segregating fifth-grade

classes at Talihina Elementary on the basis of gender. See Bryson v. City of Okla.

City, 627 F.3d 784, 788 (10th Cir. 2010) (listing all forms a "municipal policy or

custom" may take).

Turning to the second element, plaintiffs must allege facts showing "a direct

causal link between the policy or custom and the injury alleged." Id. (internal

quotation marks omitted). "Where a plaintiff claims that the municipality has not

directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous

standards of culpability and causation must be applied to ensure that the

municipality is not held liable solely for the actions of its employee." Waller v. City &

Cty. of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019). In Count Four, plaintiffs claim

that TPSD violated J.S.'s constitutional rights to equal protection, procedural due

process, and substantive due process.

1. Alleged Equal Protection Violation

The injury forming the basis of plaintiffs' equal protection claim in Count Four

is McClain's sexual harassment. [Doc. 93, ¶ 219 ("By and through the actions of [ ]

McClain, TPSD deprived J.S. of . . . clearly established rights to . . equal protection"),

¶ 223 ("McClain sexual harassment of J.S. was sufficiently severe and pervasive to

create a hostile learning environment for J.S. and otherwise deprive J.S. of fair and

equitable access to a public education")]. The court acknowledges that sexual assault

and harassment can serve as the underlying equal protection violation for municipal

liability. Rost, 511 F.3d at 1124 ("A school district's liability for sexual harassment

under the [e]qual [p]rotection clause is analyzed under a municipal liability

framework."). Here, plaintiffs assert that TPSD officials "intentionally separated

their fifth-grade male students (including J.S.) from their fifth-grade female students

and [ ] did so, in whole or in part, based on 'offensive and outdated stereotypes about

boys and girls, their behavior, and the discipline and instruction permissible for or

required for each." [Doc. 105 at 20 (citing Doc. 93, ¶¶ 21-24; Doc. 93-1)]. The SAC

alleges that, during a phone call with the Stepps, McClain "acknowledged" his

conduct was "generally inappropriate" for a fifth-grade class, and stated he would not

have used certain terms or raised certain topics "had fifth grade girls been present."

[Doc. 93, ¶ 64]. Moreover, McClain explained in a written statement that "having the

students in an all-boy setting" allowed him to "have some frank conversations that

could not take place in a boy/girl mixed setting." [Id. ¶ 25]. The court finds plaintiffs

have sufficiently alleged a direct causal link between McClain's sexual harassment

of J.S. and TPSD's sex-segregation policy. Therefore, plaintiffs have stated a plausible

claim for an equal protection violation against TPSD in Count Four.

2. Alleged Procedural Due Process Violation

The injury forming the basis of plaintiffs' procedural due process claim in

Count Four is TPSD's deficient handling of the Title IX process. [Doc. 93, ¶ 220 ("By

and through its deliberate indifference and retaliation in response to [p]laintiffs'

formal complaint under Title IX, TPSD deprived J.S. of . . . clearly established rights

to . . . equal protection"), ¶¶ 94, 101 ("[I]n response to [p]laintiffs' report of

harassment, TPSD removed J.S. from the classroom" and because "there were no

other in-school options—no integrated classroom, and no boys room taught by anyone

other than McClain—[p]laintiffs had no choice but to accept [d]efendants' proposal

for" a "modified schedule" wherein "J.S. would attend only one period of classroom

instruction" and "for the remainder of the school day, be kept in the library")]]. The

due process rights in question include J.S.'s property interest in a public education

and liberty interest in his reputation Talihina Elementary. [Id. ¶¶ 217, 228]. It is

well-settled that "public school students have a protected property interest in public

education and a liberty interest in their reputations, and therefore are entitled to

certain procedural due process protections within the educational context." Coutoure,

545 F.3d at 1256 (citing Goss v. Lopez, 419 U.S. 565, 574 (1975)).

Though the SAC alleges a failure of due process on a most basic level, the court

ventures no further into this analysis because plaintiffs fail to draw any link between

this arbitrary deprivation of J.S.'s property rights and TPSD's segregation policy.

Without more, the SAC does not state a viable procedural due process claim in Count

Four. The court therefore grants TPSD's Motion as to the underlying procedural due

process violation in Count Four.

3. Alleged Substantive Due Process Violation

The Supreme Court recognizes two types of substantive due process claims:

"(1) claims that the government has infringed a 'fundamental' right, and (2) claims

that government action deprived a person of life, liberty, or property in a manner so

arbitrary it shocks the judicial conscience." Doe v. Woodard, 912 F.3d 1278, 1300

(10th Cir. 2019) (internal citations omitted). Here, plaintiffs have pled the latter

based on allegations that TPSD permitted McClain to continue teaching fifth graders

despite having actual knowledge of his targeted abuse of J.S. [Doc. 105 at 18]. See

Abeyta ex rel. Martinez v. Chama Valley Indep. Sch. Dist., 77 F.3d 1253, 1255 (10th

Cir. 1996) ("Sexual assault or molestation by a schoolteacher violates a student's

substantive due process rights.").

TPSD argues plaintiffs have not stated a plausible substantive due process

violation because their allegations "fall well short" of "the extremely high threshold

required for the conduct of a defendant to meet the 'shocks the conscience' standard."

[Doc. 100 at 20]. The court agrees, as the SAC fails to allege facts that meet the "high

level of outrageousness" standard. See Perez, 432 F.3d at 1168 & n.4. The SAC only

alleges that TPSD placed a hall monitor outside of McClain's classroom upon notice

of his purported harassment and, three days later, removed J.S from said classroom.

[Doc. 93, ¶¶ 42, 71-74]. Moreover, plaintiffs fail to draw a link between TPSD's

segregation policy and TPSD permitting McClain to continue teaching J.S. after

receiving notice of his targeted harassment of J.S. Without more, the SAC does not

state a viable substantive due process claim in Count Four. The court therefore grants

TPSD's Motion as to the underlying substantive due process violation in Count Four.

C. COUNT FIVE | SUPERVISORY LIABILITY

Plaintiffs allege that, by enforcing the school district's unlawful segregation

policy, the Board Members and Anderson deprived J.S. of his clearly established

constitutional rights to equal protection, procedural due process, and substantive due

process. [Doc. 93, ¶ 230]. Asserting a § 1983 claim based on supervisory liability

"allows a plaintiff to impose liability upon a defendant-supervisor who creates,

promulgates, [or] implements . . . a policy . . . which subjects or causes to be subjected

that plaintiff to the deprivation of any rights . . . secured by the Constitution." Dodds,

614 F.3d at 1199. Since "vicarious liability is inapplicable to . . . § 1983 suits, a

plaintiff must plead that each Government-official defendant, through the official's

own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676. Thus,

to establish supervisory liability, plaintiffs must show that "(1) [each] defendant

promulgated, created, implemented or possessed responsibility for the continued

operation of a policy that (2) caused the complained of constitutional harm, and (3)

acted with the state of mind required to establish the alleged constitutional

deprivation." Montoya, 662 F.3d at 1164 (quoting Dodds, 614 F.3d at 1199). Here,

only the latter two elements are in dispute.

1. Alleged Equal Protection Violations

To state a supervisory liability claim under § 1983 for violation of the equal

protection clause, plaintiffs must show that each "decisionmaker . . . selected or

reaffirmed a particular course of action at least in part because of, not merely in spite

of’ the law's differential treatment of a particular class of person." SECSYS, LLC v.

Vigil ("Vigil"), 666 F.3d 678, 688 (10th Cir. 2012); Nordlinger v. Hahn, 505 U.S. 1, 10

(1992) (noting the equal protection clause "keeps governmental decisionmakers from

treating differently persons who are in all relevant respects alike."). In other words,

"a discriminatory effect against a group or class may flow from state action, it may

even be a foreseen (or known) consequence of state action, but it does not run afoul of

the Constitution unless it is an intended consequence of state action." Vigil, at 658.

The injury forming the basis of plaintiffs' equal protection claim in Count Five

is the Board Members' and Anderson's adoption and enforcement of TPSD's

segregation policy. [Doc. 93, ¶ 230 ("By adopting, implementing, and enforcing a

policy of segregation based on sex . . . [the] Board Members (Russell, Woods, Crank,

Blue, Moreland, and Lockhart) and [ ] Anderson deprived J.S. of . . . clearly

established rights to . . . equal protection"), ¶ 231 ("Until receiving an order from

OSDE to correct its violations of federal law by integrating its classrooms,

[d]efendants knowingly, intentionally, and/or recklessly violated both state and

federal law and failed to provide to J.S. and option for an equitable, sex-integrated

learning environment")]. Anderson and the Board Members contend plaintiffs fail to

allege facts which would plausibly show that any alleged injury to J.S. was a result

of intentional disparate treatment based on his status as a male student. [Doc. 100

at 23]. The court considers these arguments on a defendant-by-defendant basis.

i. Anderson & Lockhart

The SAC alleges that Anderson and Lockhart spearheaded the implementation

of TPSD's segregation policy at Talihina Elementary [Doc. 93, ¶ 21], and did so based

on "offensive and outdated stereotypes about boys and girls, their behavior, and the

discipline and instruction permissible for or required for each." [Doc. 105 (citing Doc.

93, ¶¶ 21-24)]; see also [Doc. 93-1 (OSDE letter expressing "concern[ ] about

statements made by [TPSD] educators indicating that there was in fact an intent to

treat Talihina's 5th grade boys and girls differently.")]. Plaintiffs assert this directly

resulted in the disparate treatment of J.S. on the basis of sex, including McClain

"disciplin[ing]" J.S. with inappropriate harshness and exposing J.S. to "frank

conversations" because he was a male student stuck in the "boys' room." [Id. (citing

Doc. 93, ¶¶ 25-26)]. Indeed, McClain has admitted as much in writing. [Doc. 93, ¶ 25].

The court finds plaintiffs have stated a plausible § 1983 claim for an equal protection

violation against Anderson and Lockhart, as the SAC alleges these defendants'

personal actions had a discriminatory effect and were motivated by a discriminatory

purpose. Anderson and Lockhart are not entitled to qualified immunity under these

circumstances.

ii. Blue, Crank, Lockhart, Moreland, Russell, Woods

As members of the Board, the above-named defendants were responsible for

the governance and administration of TPSD, including Talihina Elementary. [Doc.

93, ¶¶ 7-11 (citing 70 O.S. § 5-117(A))]. The SAC alleges the Board Members were

aware of TPSD's segregation policy and either explicitly or tacitly approved of the

same [Id. ¶ 23]. Plaintiffs assert this directly resulted in the disparate treatment of

J.S. on the basis of sex for the same reasons stated in the previous subsection.

Accordingly, the court finds plaintiffs have stated a plausible § 1983 claim for an

equal protection violation against the Board Members, as the SAC alleges these

defendants' personal actions had a discriminatory effect and were motivated by a

discriminatory purpose. The Board Members are not entitled to qualified immunity

under these circumstances.

2. Alleged Procedural Due Process Violations

The injury that appears to form the basis of plaintiffs' procedural due process

claim in Count Five is the complete deprivation of J.S.'s education arising from the

Board Members' and Anderson's continued enforcement of TPSD's segregation policy.

[Doc. 93, ¶ 235 ("As a result of [d]efendants' adoption (or ratification),

implementation, enforcement, and approval of a policy of sex segregation, J.S. and

[p]laintiffs have lost the benefits of the free public education to which J.S. is

entitled")]. It is well-settled that J.S. has a "legitimate entitlement to a public

education as a property interest which is protected by the [d]ue [p]rocess [c]lause. . ."

Goss, 419 U.S. at 574. Anderson and the Board Members contend the SAC "simply

does not contain any factual allegations regarding a situation implicating J.S.'s

procedural due process rights[.]" [Doc. 100 at 21].

The Supreme Court has held that when a "complete deprivation of education"

occurs—such as when a student accused of wrongdoing is removed from school for ten

days or less—the student at minimum is entitled to "notice and . . . some kind of

hearing," though the "timing and content of the notice and the nature of the hearing

will depend on the appropriate accommodation of competing interests involved." Id.

at 578-79. Here, J.S. was not accused of wrongdoing. He accused McClain of

wrongdoing and, immediately after the Stepps submitted a Title IX complaint against

McClain for sexual harassment, TPSD officials unilaterally removed J.S. from

McClain's classroom for approximately six weeks without notice, without any type of

hearing, and without providing alternative options for fair and equitable instruction.

[Doc. 93, ¶¶ 94-105]. Viewing these allegations in the light most favorable to

plaintiffs, and accepting them as true, the court finds plaintiffs have stated a § 1983

claim for equal protection violations against Anderson and the Board Members. As

established in the previous subsection, the Count Five defendants alone possessed

the authority to enforce TPSD's segregation policy. Rather than provide the process

owed after removing J.S. from McClain's classroom, Anderson and the Board

Members chose to continue enforcing the facially unlawful segregation policy. They

did so over the Stepp's objections and with knowledge that J.S. was receiving

deficient, if any, educational instruction. The court consequently denies the Count

Five defendants' Motion as to this underlying procedural due process violation.

3. Alleged Substantive Due Process Violations

According to plaintiffs, the injury forming the basis of their substantive due

process claim is the Board Members' and Anderson's deliberate indifference to

McClain's known sexual harassment. See [Doc. 105 at 18 ("Plaintiffs have alleged

activating for which [m]oving [d]efendants are directly responsible: the shocking

conduct not of a third party, but of a school employee who [m]oving [d]efendants

permitted to continue teaching fifth graders despite actual knowledge of his targeted

abuse")]. There are no factual allegations in Count Five of the SAC to support

plaintiffs' proposition. Indeed, in the context of § 1983 actions involving multiple

claims against multiple defendants, "it is particularly important" for a complaint to

"make clear exactly who is his alleged to have done what to whom" so that each

defendant has "fair notice as to the basis of the claims" against them. Robbins, 519

F.3d at 1250. This pleading requirement it intended to "ensure[] that defendants

know 'the actual grounds of the claim against them,'" in order for defendants to

"prepare a defense." Bryson, 534 F.3d at 1287. Plaintiffs have failed to state a claim

for a substantive due process violation in Count Five. The court grants the Count Five

defendants' Motion as to the underlying substantive due process violation.

D. COUNTS SIX AND NINE | RETALIATION UNDER § 1983

"Any form of official retaliation for exercising one's freedom of speech,

including prosecution, threatened prosecution, bad faith investigation and legal

harassment, constitutes an infringement of that freedom." Worrell v. Henry, 219 F.3d

1197, 1212 (10th Cir. 2000), cert denied, 533 U.S. 916 (2001). The Tenth Circuit has

adopted the following test to assess a claim of retaliation for exercising one's freedom

of speech "against a defendant who is neither an employer nor a party to a contract

with the plaintiff," as is the case here. Id. at 1213. Such a plaintiff must prove: "(1)

he was engaged in constitutionally protected activity; (2) the defendant's actions

caused the plaintiff to suffer an injury that would chill a person of ordinary firmness

from continuing to engage in that activity; and (3) the defendant's adverse action was

substantially motivated as a response to the plaintiff’s exercise of constitutionally

protected conduct." Id. at 1212 (citations omitted). Whether a person's exercise of

constitutional freedoms would be chilled under the circumstances is a context-

dependent question.10

10 See e.g., Johnson v. Whitney, 723 Fed. Appx. 587, 594-95 (10th Cir. 2018) (unpublished)

(holding that where an inmate made approximately $7 per month and used those funds to purchase

necessities, withholding $1.41 from his pay could be sufficiently chilling and was neither de minimus

nor trivial); McCook v. Spriner Sch. Dist., 44 Fed. Appx. 896, 903-05 (10th Cir. 2002) (unpublished)

The moving defendants dispute only the second element, claiming none of the

facts alleged would "chill a reasonable individual from continuing to engage in

protected activity." [Doc. 100 at 25]. The SAC sets forth the following allegations in,

and in connection to, Counts Six and Nine: Anderson and Lockhart exercised

authority in the decision to remove J.S. from his classroom and ultimately regulate

him to the library, without live instruction, as a result of plaintiffs' Title IX complaint

[Doc. 93, ¶¶ 95-13]; Anderson and Lockhart exercised authority in the decision to

remove J.S. from his basketball team on a pretextual basis [Id. ¶¶ 103-04]; Anderson,

Blair, Bryant, and the Board Members conducted a sham investigation and then

attempted to force J.S. to either leave school or return to McClain's classroom [Id. ¶¶

131-35]; Lockhart and Russell privately discussed how to handle plaintiffs' complaint

and the allegations raised therein [Id. ¶ 109]; the Board Members refused to address

concerns raised by the Stepps at a Board meeting with respect to McClain's behavior

and the ongoing segregation policy [Id. ¶ 115-16]; Anderson disclosed plaintiffs'

identities as the complainants to third parties and labeled plaintiffs as troublemaking

liars after receiving a desegregation letter from OSDE [Id. ¶¶ 147-52]; Blair and

Bryant embarrassed and punished J.S. upon his return to school and after the OSD

letter by making him sit on the floor while his peers sat in chairs [Id. ¶¶ 154-58]; and

Blair engaged in aggressive and threatening behavior toward plaintiffs' family at a

school function after receiving the OSDE letter [Id. ¶¶ 139-63].

(finding plaintiffs could prevail on the second element where they alleged their child was forced to

move to an out-of-state school after defendants suspended him in retribution for litigation).

1. Count Six | Anderson, Blair, Bryant

The court finds that plaintiffs have stated a plausible § 1983 retaliation claim

against Anderson, Blair, and Bryant. Viewing the factual allegations in the light most

favorable to plaintiffs, it may be reasonably inferred that the alleged conduct by these

three defendants caused plaintiffs an injury that would chill a person of ordinary

firmness from filing a Title IX complaint for teacher-on-student sexual harassment.

As plaintiffs' right to be free from retaliation for engaging in a protected activity was

clearly established at the time of the purported violations, the Count Six defendants

are not entitled to qualified immunity at this stage. Thus, the court denies the moving

defendants' Motion as to Count Six.

2. Count Nine | TPSD, Blue, Crank, Lockhart, Moreland,

Russell, Woods

The court finds that plaintiffs have stated a plausible § 1983 retaliation claim

against TPSD and Board Members. At the dismissal stage, plaintiffs' allegations

support a reasonable inference that the Board Members were aware of the ongoing

retaliation and, at best, failed to intervene—or, at worst, subtly contributed to its

continuation. Viewing the factual allegations in the light most favorable to plaintiffs,

it may be reasonably inferred that the alleged conduct of TPSD, by and through the

Board Members, caused plaintiffs an injury that would chill a person of ordinary

firmness from filing a Title IX complaint. As plaintiffs' right to be free from retaliation

for engaging in a protected activity was clearly established at the time of the

purported violations, the individual Count Nine defendants are not entitled to

qualified immunity at this stage. Thus, the court denies the moving defendants'

request for Rule 12(b)(6) dismissal of Count Nine.

E. COUNT SEVEN | CONSPIRACY UNDER § 1983

At the motion to dismiss stage, a plaintiff need only allege facts demonstrating

"an agreement upon a common, unconstitutional goal" and "concerted action" taken

"to advance that goal." Janny v. Gamez, 8 F.4th 883, 919 (10th Cir. 2021) (citation

omitted). Recognizing that "direct evidence of an agreement to join a conspiracy is

rare," the Tenth Circuit has held that a defendant's "assent can be inferred from acts

furthering the conspiracy's purpose." Bledsoe v. Carreno, 53 F.4th 589, 609 (10th Cir.

2022). An express agreement is consequently unnecessary. See Frasier v. Evans, 992

F.3d 1003, 1024-05 (10th Cir. 2021). Further, while "[t]he participants int eh

conspiracy must share the general conspiratorial objective," they "need not known all

the details of the plan designed to achieve the objective or possess the same motives

for desiring the intended conspiratorial result." Id. at 1024 (quoting Snell v. Tunnell,

920 F.2d 673, 702 (10th Cir. 1990)).

The SAC alleges the specific goal of this purported conspiracy was to "deprive"

plaintiffs of their "constitutional rights and of statutory rights intended to secure the

same (e.g., under Title IX)." [Doc. 93, ¶ 43]. Plaintiffs contend the moving defendants'

subsequent actions evidence this agreement to achieve an unlawful purpose. [Doc.

105 at 23]. Such actions include at least three meetings between Anderson and

McClain, McClain and Lockhart, and Lockhart and Russell in which the participants

expressly discussed the evidence, allegations, and Anderson's premeditated refusal

to provide plaintiffs with information pertinent to the Title IX investigation. [Id.

(citing Doc. 93, ¶¶ 109, 111-13)].

The SAC further identifies specific actions the moving defendants allegedly

took to carry out the plan, including but not limited to unlawfully withholding

information from plaintiffs regarding their rights under the Title IX process;

unlawfully withholding from McLemore (Title IX officer) and plaintiffs pertinent

information gathered during the Title IX process; failing to interview the Stepps, J.S.,

or any corroborating witnesses as part of the Title IX investigation; and failing to

permit plaintiffs' review of any evidence or resulting investigative findings before

closing the investigation. While these allegations are sufficient to allege the existence

of a conspiracy to violate plaintiffs' statutory rights under Title IX, plaintiffs are

preempted from holding the moving defendants liable under § 1983 for purported

violations of Title IX. See Seamons, 84 F.3d at 1233. Notwithstanding, plaintiffs'

assertion that each individual moving defendant participated in the conspiracy

requires the court to take a closer look at the facts alleged in the SAC.

1. Anderson | Principal of Talihina Elementary

The court finds plaintiffs have adequately alleged that Anderson (1) personally

participated in the conspiracy to violate plaintiffs' rights; (2) joined, and perhaps

engendered, the conspiracy by speaking with McClain and Lockhart sometime

between August 25 and August 29, 2022 to coordinate how to handle the Title IX

complaint; and (3) acted to further the conspiracy by purposefully withholding

documentation of her conversations with McClain about his complained-of conduct,

by disclosing plaintiffs' identities as the complainants to other TPSD parents, and by

telling other TPSD parents that J.S.'s allegations against McClain were

unsubstantiated. The court further finds that plaintiffs have stated plausible § 1983

claims for equal protection and procedural due process violations against Anderson

in Count Seven, as supported by Count Five.

2. Lockhart | TPSD Superintendent & Board Member

The court finds plaintiffs have adequately alleged that Lockhart (1) personally

participated in the conspiracy to violate plaintiffs' rights; (2) joined, and perhaps

engendered, the conspiracy by speaking with McClain and Anderson sometime

between August 25 and August 29, 2022 to coordinate how to handle the Title IX

complaint; and (3) acted to further the conspiracy by prohibiting McLemore from

participating in the August 29 meeting with the Stepps and by declining to take any

action on concerns raised by the Stepps and other TPSD parents at the September 6,

2022 Board meeting. The court further finds that plaintiffs have stated plausible §

1983 claims for equal protection and procedural due process violations against

Lockhart in Count Seven, as supported by Count Five.

3. Russell | President of the Board

The court finds plaintiffs have adequately alleged that Russell (1) personally

participated in the conspiracy to violate plaintiffs' rights; (2) joined the conspiracy by

meeting with Lockhart and Anderson in late-August 2022 to discuss how to handle

plaintiffs' Title IX complaint; and (3) acted to further the conspiracy by declining to

take any action on concerns raised by the Stepps and other TPSD parents at the

September 6, 2022 Board meeting. The court further finds that plaintiffs have stated

plausible § 1983 claims for equal protection and procedural due process violations

against Anderson in Count Seven, as supported by Count Five.

4. Blue, Crank, Moreland, Woods | Board Members

The court finds plaintiffs have adequality alleged that Blue, Crank, Moreland

and Woods (1) personally participated in the conspiracy to violate plaintiffs' rights;

(2) joined the conspiracy when informed of plaintiffs' Title IX complaint and ensuing

investigation; and (3) acted to further the conspiracy by installing Blair and Bryant

as the new Title IX officers to complete a sham investigation and by declining to take

any action on concerns raised by the Stepps and TPSD parents at the September 6,

2022 Board meeting. The court further finds plaintiffs have stated plausible § 1983

claims for equal protection and procedural due process violations against Blue,

Crank, Moreland and Woods in Count Seven, as supported by Count Five.

5. Blair and Bryant | Title IX Officers

The court finds plaintiffs have adequately alleged that Blair and Bryant (1)

personally participated in the conspiracy to violate plaintiffs' rights; (2) joined the

conspiracy in early-September 2022 when they became Talihina Elementary's new

Title IX officers; and (3) acted to further the conspiracy by conducting a sham Title

IX investigation. However, there are no factual allegations in Count Seven to support

the proposition that Blair and Bryant violated plaintiffs' constitutional rights to equal

protection or due process. See West, 487 U.S. at 48 ("To state a claim under § 1983, a

plaintiff must allege the violation of a right secured by the Constitution . . ."). While

the commission of such violations are supported by specific allegations in Count Five

as against Anderson and the Board Members, the allegations in Count Seven are

insufficient to support the same finding as against Blair and Bryant. See Robbins,

519 F.3d at 1250; Bryson, 534 F.3d at 1287. The court concludes plaintiffs have failed

to plausibly allege in Count Seven that Blair and Bryant deprived them of any

constitutional rights. As plaintiffs have failed to state a § 1983 conspiracy claim

against Blair and Bryant, Count Seven is dismissed for failure to state a claim against

Blair and Bryant—who are consequently entitled to qualified immunity on the same.

V. CLAIMS FOR VIOLATIONS OF OKLAHOMA LAW

Plaintiffs assert five causes of action under Oklahoma law against the moving

defendants, alleging negligence and negligent supervision (Count Ten), defamation

(Count Twelve), violation of 70 O.S. § 24-157's prohibition against gender

discrimination in public education (Count Thirteen), assault (Count Fourteen), and

civil conspiracy (Count Fifteen).

A. INTRODUCTION / THRESHOLD ISSUES

The moving defendants contend the GTCA renders them immune from liability

on all state law claims asserted in the SAC. Anderson and Blair additionally argue

that Counts Twelve and Thirteen should be dismissed under Rule 12(b)(6) as such

claims are barred by the applicable statute of limitations.

1. Immunity under the GTCA

Under the GTCA, only a governmental entity or political subdivision can be

liable for a tort committed by an employee while acting within the scope of

employment. The GTCA precludes tort actions against "an employee of the state or

political subdivision acting within the scope of his employment." 51 O.S. § 163(C);

see also 51 O.S. § 152(12) (defining "scope of employment" as "performance by an

employee acting in good faith within the duties of the employee's office or employment

of tasks lawfully assigned by a competent authority."). "An act of the employee is not

in the scope of employment if the employee acted maliciously or in bad faith."

Pellegrino v. State ex rel. Cameron Univ. ex rel. Bd. of Regents of State, 2003 OK 2,

¶ 4, 63 P.3d 535, 537 (citations omitted). "A government employee acting within the

scope of employment is relieved from private (individual) liability for tortious conduct,

but when an employee acts outside the scope of employment the political subdivision

is relieved from liability." Id. (citing Martin v. Johnson, 1998 OK 127, ¶ 28, 975 P.2d

889, 895). The concept of scope of employment is thus tied to whether the employee

or the government entity may be liable for a particular act.

TPSD is a "political subdivision" to which the GTCA applies. 51 O.S. §

152(11)(b). And each individual moving defendant falls within the GTCA’s definition

of "employee." See 51 O.S. § 152(7) (defining "employee" as "any person who is

authorized to act on behalf of a political subdivision . . ."). A suit against a political

subdivision, as a suit against governmental employees, must be based upon the

claimant presenting written notice of a claim within one year of the date the loss

occurs, or the claim is forever barred. Hathaway v. State ex rel. Med. Research &

Tech. Auth., 2002 OK 53, ¶ 8, 49 P.3d 740, 742 (citing 51 O.S. § 156(b)). On July 28,

2023, plaintiffs provided TPSD with written notice of their claims for negligence,

IIED, assault, "vicarious liability / respondeat superior," and any tort claims available

under 70 O.S. § 24-157. [Doc. 93-3 at 2-3]. The GTCA further provides that suit cannot

be initiated against a political subdivision unless the claim has been denied in whole

or in part. 51 O.S. § 157(A). Because TPSD did not respond to plaintiffs' formal notice,

the claims therein were deemed denied by operation of law on October 26, 2023. [Doc.

93, ¶ 174]. Plaintiffs initiated this action within 180 days of that denial—i.e., on April

23, 2024—as required by the GTCA. See 51 O.S. § 157(B).

2. Counts Twelve and Fourteen are Barred by the Applicable

Statute of Limitations

The notice requirements of the GTCA do not apply to tort claims against a

governmental employee when the plaintiff’s claims are based upon allegations that

the employee's acts were outside the scope of his or her employment. Spencer v.

Nelson, 2024 OK 63, ¶ 16, 557 P.3d 144, 150 (citing Pellegrino, ¶ 18, 63 P.3d at 150).

Plaintiffs' claims for defamation against Anderson and Blair (Count Twelve) and for

assault against Blair (Count Fourteen) are claims that as a matter of law fall outside

their scope of employment, and thus fall outside the purview of the GTCA. See Hall

v. Okla. Dep't of Human Servs., No. 15-CV-670-CVE-TLW, 2016 WL 2903266 at *9 &

n.1 (N.D. Okla. May 18, 2016) ("It is settled that intentional torts are outside the

scope of employment[.]") (quoting Jackson v. Okla. City Pub. Schs., 2014 OK CIV APP

61, ¶ 9, 333 P.3d 975, 978-79); see also 51 O.S. § 152(14). Title 12, Section 95 of the

Oklahoma Statutes prescribes the limitations period for intentional tort claims—

including defamation and assault—and provides in relevant part:

Civil actions other than for the recovery of real property can only be

brought within the following periods, after the cause of action shall have

accrues, and not afterwards: . . . Within one (1) year: An action for

libel, slander, assault, battery, malicious prosecution, or false

imprisonment . . .

12 O.S. § 95(A)(4) (emphasis added). Plaintiffs' allegations relating to their

defamation and assault claims do not allege any actionable conduct within one year

of the filing date of this action. The incidents plaintiffs describe as involving

defamation by Anderson occurred in late-September or early-October of 2022. The

incidents they describe as involving defamation and assault by Blair occurred in mid-

October of 2022. Plaintiffs' defamation and assault claims, filed April 23, 2024, are

thus outside the statute of limitations and must be dismissed as a matter of law.

B. COUNT TEN | NEGLIGENCE AND NEGLIGENT SUPERVISION

In Count Ten, plaintiffs allege that TPSD and the Board Members breached

their duty to exercise reasonable care in controlling the conduct of their agents so as

to prevent harm to J.S. by (1) failing to reasonably train, supervise, and discipline

McClain; (2) failing to foster an environment, policy, and culture wherein reports of

bullying, harassment, and/or unwanted sex-oriented activity are encourages; and (3)

failing to institute any policies or procedures compliant with Title IX; (4) failing to

implement or enforce any general policy concerning bullying. [Doc. 93, ¶¶ 292-93].

They also allege that TPSD and the Board Members at all times knew of the need to

exercise control over their employees, had the ability to do so, and breached their duty

to protect J.S. from the known risk of harassment by McClain. [Id. ¶¶ 294-96].

1. Negligence Claims Against the Board Members

The Board Members contend that plaintiffs' negligence claims should be

dismissed because any challenged conduct by them as individual school officials were

performed in the scope of their employment. [Doc. 100 at 35]. The court finds,

however, that dismissal of the negligence claims against the Board Members is not

appropriate at this stage. See e.g., Tuffy's , Inc. v. City of Okla. City, 2009 OK 4, ¶ 8,

212 P.3d 1158, 1163 ("Except in cases where only one reasonable conclusion can be

drawn, the question of whether an employee acted within the scope of employment at

any given time is a question for the trier of fact."); Trant v. Oklahoma, 874 F.Supp.2d

1294, 1307 (W.D. Okla. Mar. 19, 2012) (rejecting GTCA immunity argument where

plaintiff alleged malicious, bad faith action). Indeed, the SAC pleads facts asserting

the Board Members acted intentionally, recklessly, or beyond the duties of their

office. See [Doc. 93, ¶¶231, 285, 294]. The court finds plaintiffs have stated plausible

negligence claims against the Board Members. The court accordingly denies the

Board Members’ Motion as to Count Ten.

2. Negligence Claims Against TPSD

TPSD argues that plaintiffs' claims for negligence and negligence per se are

barred by exemptions from liability under the GTCA and are, therefore, subject to

Rule 12(b)(6) dismissal. [Doc. 100 at 27]. Plaintiffs concede the school district cannot

be held liable for negligence involving certain "policy-level" discretionary functions

under 51 O.S. § 155(5), or for its actions adopting legally insufficient anti-bullying

and Title IX policies under 51 O.S. § 155(4). According to plaintiffs, however, the

negligence claims against TPSD are not premised on these exempted policy-level or

"discretionary" functions. Such claims are instead premised on "TPSD's failure to

properly implement" its deficient policies—which is not exempted by § 155(5) of the

GTCA. [Doc. 105 at 29].

Given that the discretionary function exemption is to be construed narrowly

and "do[es] not apply to tortious acts of government servants in the daily

implementation of policy," State ex rel. Okla. Dep't of Pub. Safety v. Gurich, 2010 OK

56, ¶ 11, 238 P.3d 1, 4, the court is not persuaded that dismissal of this aspect of the

negligence claim against TPSD is warranted at this stage. Indeed, once a school

district is notified of complaints of misconduct and decides to respond, it must proceed

in its work with reasonable care and in a non-negligent manner. See Najera v. Indep.

Sch. Dist. of Stroud No. 1-54 of Lincoln Cty., 60 F.Supp.3d 1202, 1206 (W.D. Okla.

Oct. 7, 2014). Plaintiffs have included sufficient factual content from which it can be

plausibly inferred that TPSD's purported response to complaints of misconduct

involved the negligent performance of a policy as opposed to a discretionary act of

policymaking. The court accordingly denies TPSD's Motion as to Count Ten.

C. COUNT THIRTEEN | GENDER DISCRIMINATION

Oklahoma House Bill 1775 (the "Act" or "HB 1775") was signed into law on

May 7, 2021. The Act, codified in 70 O.S. § 24-157, and its implementing regulations,

codified in Oklahoma Administrative Code ("OAC") 210:10-1-23, prohibit the training

or teaching of specified subjects in Oklahoma schools. In the present case, plaintiffs

allege the moving defendants "required or made part of [their] teaching or coursework

discriminatory principles" prohibited by 70 O.S. §§ 24-157(B)(1)(a), (c), (e), and (g).11

[Doc. 93, ¶ 334]. The moving defendants argue Count Thirteen is subject to dismissal

under Rule 12(b)(6) because there is no private right of action for violation of HB

1775, and because the complained-of conduct occurred before the implementing

regulations went into effect. [Doc. 100 at 32]. According to plaintiffs, however, HB

1775 creates an implied private right of action. [Doc. 105 at 29].

Under Oklahoma law, a private right of action can be implied from a public-

law statute if the following elements are met: (1) the plaintiff is of the class for whose

benefit the statute was created; (2) some indication of legislative intent, explicit or

implicit, suggests that the Legislature intended to create a private remedy, rather

than deny the same; and (3) implying a remedy for the plaintiff would be consistent

with the underlying purpose of the legislative scheme. Owens v. Zumwalt, 2022 OK

14, ¶ 10, 503 P.3d 1211, 1215. The moving defendants only dispute plaintiffs' ability

to meet the second element. In evaluating the second prong, courts must determine

legislative intent by "looking at the precise wording of the [statute] and studying its

history." Holbert v. Echeverria, 1987 OK 99, ¶ 11, 744 P.2d 960, 964.

The court finds no legislative intent, either implied or explicit, in HB 1775 to

create a private remedy for violations of said statute. Rather, the Act is a legislative

grant of authority to the Oklahoma State Board of Education ("OSBE") to

11 The Oklahoma Attorney General and his office are presently enjoined from enforcing certain

portions of HB 1775. See Black Emergency Response Team v. Drummond ("Black"), 737 F.Supp.3d

1136 (W.D. Okla. June 14, 2024). This preliminary injunction effects one of the four provisions on

which plaintiffs rely—i.e., "[n[o teacher . . . shall require or make part of a course" the concept that "an

individual should be discriminated against or receive adverse treatment solely or partly because of his

or her race or sex[.]" 70 O.S., § 24-157(B)(1)(c); Black, supra, at 1157. See [Doc. 93, ¶ 325].

"promulgate rules" and "implement the [Act's] provisions." See 70 O.S. § 24-157(B)(2).

The penalties set out for violation of the Act are administrative. See OAC 210:10-1-

23(j). Both state and federal courts have held the second prong unsatisfied where a

statute granted regulatory authority to an administrative agency rather than

explicitly creating a private right of action within the statute itself.12 Plaintiffs

nevertheless contend that, in exercising its authority to promulgate rules under the

Act, the OSBE recognized a private right of action in March of 2022:

Title VI and Title IX may be enforced by private right of action, whereby

aggrieved parties may seek relief, including monetary damages, for

violations of federal antidiscrimination laws. Victims of discrimination

may file a lawsuit directly against the Public School. In addition to any

private rights of action, aggrieved parties may seek applicable remedies

through the U.S. Department of Education’s Office for Civil Rights or

the U.S. Department Justice's Civil Rights Division.

[Doc. 105 at 30 (citing OAC 210:10-1-23(o))]. The moving defendants further argue

the implementing regulations were not in force at the time they allegedly violated the

Act. Indeed, the pertinent regulations went into effect on September 11, 2022. See 39

Okla. Reg. 992, 2022 OK REG TEXT 603412 (NS). According to the moving

defendants, the underlying conduct which plaintiffs claim violated HB 1775 occurred

in August of 2022. [Doc. 93, ¶¶ 31-106]. According to plaintiffs, such underlying

conduct spanned from mid-August 2022 to mid-October 2022. [Doc. 100 at 31 (citing

12 See e.g., Nichols Hills Physical Therapy v. Guthrie, 1995 OK CIV APP 97, ¶ 9, 900 P.2d 1024,

1026 ("Had the legislature intended to provide an injured patron with the right of private action . . . it

would have explicitly done so."); Thomas v. Metro. Life Ins. Co., 540 F.Supp.2d 1212, 1230 (W.D. Okla.

Jan. 10, 2008) ("When a statute grants enforcement authority to an administrative agency or officer,

this grant implies the legislature did not intend to provide a private right of action."); Risk v. Allstate

Life Ins. Co., No. 4-CV-333-CVE-FHM, 2006 WL 2021597 at *3 (N.D. Okla. July 17, 2006) ("In terms

of statutory construction, the inclusion of administrative enforcement impliedly excludes a private

right of action.") (citing Holbert, ¶¶ 15-16, 744 P.2d at 965).

Doc. 93, ¶¶ 133, 138, 141, 153-60)]. The portions of the SAC to which plaintiffs cite

set forth allegations that the Title IX investigation was closed on September 17, 2022;

OSBE sent TPSD notice to end its segregation policy on September 29, 2022; OSBE's

letter directed that TPSD integrate fifth-grade classes at Talihina Elementary by

October 10, 2022; and J.S. returned to his first full day of in-class instruction on

October 12, 2022.

The court agrees with the moving defendants that "[n]one of these alleged

events involved a [TPSD] employee allegedly 'requir[ing] or mak[ing] part of a course'

one or more of the concepts prohibited by HB 1175 or its regulations." [Doc. 111 at 9

(quoting 70 O.S. § 24-157(B)(1))]. To the extent the Act provides for an implied private

right of action against employees of a school district, plaintiffs' claim for violation of

HB 1775 against the moving defendants fails because the implementing regulations

went into effect after their purported violation of the Act. The moving defendants'

request for Rule 12(b)(6) dismissal of Count Thirteen is therefore granted.

D. COUNT FIFTEEN | CIVIL CONSPIRACY

According to the Oklahoma Supreme Court, the tort of civil conspiracy

. . . consists of a combination of two or more persons to do an unlawful

act, or to do a lawful act by unlawful means. Unlike its criminal

counterpart, civil conspiracy itself does not create liability. To be liable

the conspirators must pursue an independently unlawful purpose or use

an independently unlawful means. There can be no civil conspiracy

where the act of and the means employed are lawful.

Brock v. Thompson, 1997 OK 127, ¶ 38, 948 P.2d 279, 294 (footnotes omitted)

(emphasis in original). Here, the parties dispute whether plaintiffs have or can plead

facts demonstrating the existence of an "unlawful act." Under Oklahoma law, it is not

necessary that the unlawful act be a criminal act. However, it must be an act which

would in itself give rise to tort liability. See Gaylord Entm't Co. v. Thompson, 1998

OK 30, ¶ 40, 958 P.2d 128, 148 ("In order to be liable the conspirators must pursue

an independently unlawful purpose or use an independently unlawful means.").

The court finds that plaintiffs have pled facts which could give rise to a tort

committed by one or more defendant. The following individual defendants are alleged

to have entered into agreements under Count Fifteen: Anderson and Lockhart [Doc.

93, ¶ 350]; Anderson and Russell [Id. ¶ 351]; Anderson, Lockhart, Russell, Blue,

Crank, Moreland, and Woods [Id. ¶ 352]; Bryant and Blair [Id. ¶ 353]. The SAC

further alleges that those individual defendants agreed "to segregate Talihina

Elementary's fifth grade class based on sex, in violation of federal and state law"

and/or "not to cooperate or to interfere with the Title IX investigation undertaken by

Talihina Elementary officials." [Doc. 93, ¶¶ 356-57]. Plaintiffs' allegations are

sufficient to state a claim for civil conspiracy under Oklahoma law; therefore, Count

Fifteen will survive the moving defendants' dismissal challenge.

VI. LIMITATION OF DAMAGES

TPSD contends punitive damages are not available for plaintiffs' claims arising

under Title IX, § 1983, or the GTCA. [Doc. 100 at 44-45]. Plaintiffs concede to this

contention as it applies to TPSD but argue against dismissal of their requests for

punitive damages against the individual moving defendants. [Doc. 105 at 32]. It is

well-settled that punitive damages are not available under § 1983 against

governmental entities or individuals acting in their official capacities. See Brandon

v. Holt, 469 U.S. 464 (1985); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271

(1981). Punitive damages are also unavailable under Title IX. See Cummings v.

Premier Rehab Keller, PLLC, 596 U.S. 212 (2022) (holding punitive damages are not

available in Title IX private rights of action against recipients of federal financial

assistance for discriminating based on protected characteristics). As for plaintiffs'

state law claims, the GTCA expressly provides that punitive damages may not be

recovered against a political subdivision such as TPSD. See 51 O.S. § 154(C). As a

matter of law, TPSD is immune from liability for punitive damages on plaintiffs'

claims arising under Title IX, § 1983, and the GTCA.

VII. CONCLUSION

Based on the foregoing, the moving defendants’ Motion [Doc. 100] is

GRANTED in part and DENIED in part. Following entry of this Order, the status

of each operative claim asserted in the SAC against these defendants is as follows:

 Count One alleging a Title IX gender discrimination claim remains pending

against TPSD.

 Count Two alleging a Title IX sexual harassment claim remains pending

against TPSD.

 Count Three alleging a Title IX retaliation claim remains pending against

TPSD.

 Count Four alleging a § 1983 municipal liability claim based on violation of

J.S.'s constitutional right to equal protection remains pending against TPSD.

The alleged due process violations underlying Count Four are dismissed for

failure to state a claim against TPSD.

 Count Five alleging § 1983 supervisory liability claims based on violations of

J.S.'s constitutional rights to equal protection and procedural due process

remain pending against Anderson, Blue, Crank, Lockhart, Moreland, Russell

and Woods in their individual capacities. The alleged substantive due process

violations underlying Count Five are dismissed for failure to state a claim

against the Count Five defendants.

 Count Six alleging a § 1983 retaliation claim based on violation of the First

Amendment remains pending against Anderson, Blair, and Bryant in their

individual capacities.

 Count Seven alleging a § 1983 conspiracy claim based on violations of plaintiffs'

constitutional rights to equal protection and procedural due process remains

pending against TPSD as well as Anderson, Blue, Crank, Lockhart, Moreland,

Russell and Woods in their individual capacities. The alleged substantive due

process violations underlying Count Seven are dismissed for failure to state a

claim against TPSD and those individual defendants in their personal

capacities. Moreover, Count Seven is dismissed for failure to state a claim

against Blair and Bryant in their individual capacities.

 Count Nine alleging a § 1983 retaliation claim based on violation of the First

Amendment remains pending against TPSD as well as Blue, Crank, Lockhart,

Moreland, Russell, and Woods in their individual capacities.

 Count Ten alleging claims for negligence, negligent supervision, and

negligence per se remain pending against TPSD, Blue, Crank, Lockhart,

Moreland, Russell, and Woods.

 Count Twelve alleging defamation claims are dismissed for failure to state a

claim against Anderson and Blair within the one-year limitations period

provided by 12 O.S. § 95(4).

 Count Thirteen alleging violations of HB 1775's prohibition against gender

discrimination in public education is dismissed for failure to state a claim

against TPSD, Anderson, Blair, and Lockhart.

 Count Fourteen alleging an assault claim is dismissed for failure to state a

claim against Blair within the one-year limitations period provided by 12 O.S.

§ 95(4).

 Count Fifteen alleging a civil conspiracy claim under Oklahoma law remains

pending against each moving defendant.

 Plaintiffs' prayer for punitive damages is stricken insofar as it relates to TPSD

(Counts One, Two, Three, Four, Nine and Ten) and remains pled insofar as it

relates to the individual moving defendants.

IT IS SO ORDERED this 29th day of April, 2025.

____________________________________

JASON A. ROBERTSON

UNITED STATES MAGISTRATE JUDGE