M.J. v. Akron City Sch. Dist Bd. of Educ.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0135p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

20-3461 ┐

M.J., a minor, by and through his guardian, S.J.; S.J., │

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Plaintiffs-Appellants,

│

│

v. > Nos. 20-3461/3462

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AKRON CITY SCHOOL DISTRICT BOARD OF EDUCATION; AKRON │

CITY SCHOOL DISTRICT; DAVID W. JAMES, Superintendent of │

Akron City School District, in his official capacity; PHILOMENA │

VINCENTE, JENNIFER RAMON, and CHRISTOPHER HENDON, in │

their official and individual capacities, │

Defendants-Appellees. │

│

│

20-3462

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M.H., legal custodian and next best friend of minor child, W.H.; │

W.H., by and through his guardian, M.H., │

Plaintiffs-Appellants, │

│

v. │

│

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AKRON CITY SCHOOL DISTRICT BOARD OF EDUCATION; AKRON │

CITY SCHOOL DISTRICT; DAVID W. JAMES, Superintendent of │

Akron City School District, in his official capacity; PHILOMENA │

VINCENTE, TRACI MORRISON, and CHRISTOPHER HENDON, in │

their official and individual capacities, │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Northern District of Ohio at Akron.

Nos. 5:18-cv-00577 (20-3461); 5:18-cv-00870 (20-3462)—Sara E. Lioi, District Judge.

Argued: January 27, 2021

Decided and Filed: June 15, 2021

Before: SUTTON, Chief Judge; BOGGS and NALBANDIAN, Circuit Judges.

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 2

_________________

COUNSEL

ARGUED: Edward L. Gilbert, EDWARD L. GILBERT CO., L.P.A., Akron, Ohio for all

Appellants. Steven D. Strang, GALLAGHER SHARP LLP, Cleveland, Ohio, for all Appellees.

ON BRIEF: Edward L. Gilbert, EDWARD L. GILBERT CO., L.P.A., Akron, Ohio for

Appellants M.J., S.J., M.H., and W.H. Steven D. Strang, Richard C.O. Rezie, GALLAGHER

SHARP LLP, Cleveland, Ohio, for all Appellees.

_________________

OPINION

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NALBANDIAN, Circuit Judge. The Constitution does not guarantee a remedy for every

wrong. That is unfortunately true in this strange case. Christopher Hendon impersonated a

police officer to gain access to Leggett Elementary, a public school in Akron, Ohio. His plan

was to restart the city’s Scared Straight Program—a program in which unruly children and teens

are exposed to arrest and imprisonment in hopes that the process will scare them into behaving

well.1 By dressing and acting like a legitimate police officer, Hendon convinced Leggett’s

administration and teachers that he worked for the Akron Police Department. This enabled him

to roam the school’s halls freely.

But Hendon heaped abuse on top of his fraud. He used his freedom to navigate Leggett

to place children in handcuffs and force students to exercise. He even violently battered and

verbally assaulted one child. Now, some of Hendon’s victims are suing the Akron City School

District, its Board of Education, and a few of Leggett’s employees. They bring a variety of

federal constitutional and statutory claims, as well as some state-law claims. The district court

granted defendants summary judgment on the federal claims and dismissed the state-law claims

without prejudice. Plaintiffs now appeal, and we AFFIRM.

1

The original “Scared Straight!” documentary aired in the late 1970s and involved juvenile offenders

exposed to inmates at Rahway State Prison in New Jersey. The film won an Academy Award for Best Documentary

Feature in 1978 and spawned later documentaries, television shows, and copycat programs in other communities.

Scared Straight!, Wikipedia, https://en.wikipedia.org/wiki/Scared_Straight! (last accessed Mar. 15, 2021).

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 3

I.

A.

The day Christopher Hendon first arrived at Leggett Elementary was chaotic. It began

when a misbehaving child was sent to the front office. Leggett’s principal, Philomena Vincente,

called the child’s mother to come pick him up. But instead of personally coming, the mother

told the school that her “boyfriend who is a policeman” would come. That boyfriend turned out

to be Christopher Hendon.

In the meantime, a mother of two of Leggett’s students called to warn the school that the

students’ father, who was high on drugs, was coming to the school to try to kidnap the children.

The mother feared that the father would kill himself in front of them. Naturally, the school

called the police and summoned Akron Board of Education police officer Don Good, a reserve

officer with the Akron Police Department. Though the father beat the police to the school,

Vincente intervened in time to prevent him from taking his children, and when a marked police

cruiser arrived, the father fled until police apprehended him.

While all this was going on, Christopher Hendon showed up. He was there to pick up the

unruly child, who remained in the office as Vincente and the school tried to deal with the

disruptive parent. After Hendon pulled up to the school, Vincente saw him speak with the Akron

police officer who had arrived in response to the still-ongoing incident. Then, as he entered

Leggett, he also talked briefly with Officer Good.

Hendon wore what looked like full SWAT garb—all black, with a vest and badge that

said “officer,” and his name on his uniform. Dressed this way, Hendon would not stand out on a

normal day at Leggett. Uniformed police officers regularly roamed the school’s halls at least a

couple of times a month. They would interact with students and staff to show the students that

“policemen are your friends.” And when police showed up, it was usually unannounced—even

the specific officer often varied. Staff identified a visitor as an officer simply by his or her

uniform—although some said they did not expect officers to discipline students. Still, under an

agreement between the Akron City School Board and the Akron Police Department, police

officers could respond to “unruly behavior” and were “expected to assist school administrators in

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 4

situations where the officers’ training and background experience may be useful.” (R. 92-6,

Agreement at 9–10, PageID # 2791–92).

When Hendon entered the office, the secretaries assumed he was a police officer and did

not require him to sign in. They so assumed not only because of his clothing and interactions

with police officers, but also because the boy Hendon was picking up had identified him as his

mother’s “policeman” boyfriend.

Hendon approached the boy and asked Vincente what kind of trouble he was in. He and

Vincente then talked briefly about Hendon’s efforts with the Akron City Council to restart the

Scared Straight Program. Hendon and Vincente did not interact anymore that day, though

Hendon hung around Leggett until the end of the day to speak with staff. He also spoke for the

first time with one of our plaintiffs, M.J., who was a student at Leggett.

The next morning, Hendon showed up again, uninvited. And again, he was dressed in

what looked like SWAT gear. He and Vincente spoke a second time about the Scared Straight

Program. But this time, Vincente was explicit that she would not allow Hendon to run the

program at Leggett or present the idea to parents. Still, Hendon was committed to his ruse—he

showed Vincente a photo of himself posing with Akron’s mayor.

Later that same day, M.J.’s teacher, Jennifer Ramon, called Leggett “administration”

because M.J. had become aggressive in class. But instead of a school employee, Hendon showed

up. He took M.J. out of the classroom and brought him to the office to ask Vincente for a room.

Vincente directed them to a room near the office, where Hendon threw M.J. against a wall, table,

and chairs and verbally abused him. After leaving the room, Hendon asked the office secretary

for M.J.’s report card, and M.J. gave Hendon his mother’s phone number. Then, Hendon

returned M.J. to class—though M.J. did not tell Ramon or any other school employee about what

happened.

Hendon was not finished with M.J. yet. After the first incident, M.J. and another student

were misbehaving at recess. Observing this, a special education teacher retrieved Hendon, who

took the two students inside to an empty cafeteria and brought them behind a curtain. He then

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 5

forced them to perform exercises and sent them back to class. Again, M.J. did not tell Ramon

about what happened.

One last interaction between Hendon and M.J. bears mentioning. M.J. and a group of

students began to act out in class. As she did earlier, Ramon called for administration. And also

like the first incident, Hendon showed up instead. He took the boys from class but returned them

a few minutes later. The boys apologized to their teacher, and class proceeded. It is unclear

from the record what happened between the students and Hendon during their brief absence.

Hendon did not target only M.J. His time at Leggett also included an episode with W.H.,

another student at the school. W.H. was a student in Theresa Morrison’s class when Hendon

showed up at Leggett. Morrison first met Hendon in the front office, where Hendon introduced

himself and told Morrison he was with the Scared Straight program. At the time, Hendon was

dressed in his typical dark “uniform,” which Morrison likened to that worn by other officers who

visit Leggett. Because Morrison assumed Hendon was a police officer, she asked him if he

worked for Akron and if he knew a friend of hers, who was also an Akron police officer.

Hendon told Morrison that he indeed worked for Akron and that he knew her friend.

After this initial interaction, Morrison believed Hendon was a police officer. And

Hendon reinforced her belief by showing her photos like those he showed Vincente. These

included photos of Hendon with the mayor of Akron, a group of children at the Juvenile

Detention Center, other police officers, and one of Hendon in uniform presenting to a group of

children.

Some time later, W.H. got into a fight with another student during gym class. Morrison

went to retrieve her class from gym, and when she arrived, the fight was still ongoing. After she

separated the brawlers, Morrison brought W.H. to the office. There, Vincente told Morrison to

call M.H., W.H.’s mother, to tell her to come pick W.H. up from school; Morrison obliged.

While she was on the phone, Hendon approached her and asked to speak with M.H. Again,

Morrison obliged because “[h]e was a police officer.” She handed Hendon the phone, and he

walked away to talk to M.H.

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 6

During the call, Hendon told M.H. that he was an officer with the Scared Straight

program. And he explained to M.H. that W.H. was acting up in school. The two finished their

call, and M.H. came to the school immediately. When she got there, she, Morrison, Hendon, and

W.H. congregated in the hallway outside Morrison’s classroom. Hendon told M.H. that he

planned to handcuff W.H. and bring him to the office. M.H., assuming Hendon was a police

officer, consented and even filmed the episode.

Once they got to the office, Hendon placed W.H. next to another boy. At the time,

multiple other children were handcuffed there. Hendon left W.H. there for a few hours. When

the day ended, Hendon removed W.H.’s handcuffs at M.H’s request and asked M.H. if he could

take W.H. home in his “cruiser car.” M.H. again gave Hendon her permission, and Hendon

drove W.H. home.

B.

Eventually, the Akron police caught on to Hendon. They investigated and then arrested

him, charging him with more than fifty crimes. And once his actions at Leggett became public,

S.J. (M.J.’s mother) and M.H., on behalf of themselves and their sons (together, plaintiffs), sued.

S.J. sued Vincente, Ramon, Hendon, the Akron City School District, the Akron City School

District’s Board of Education, and David James, superintendent of the Akron City School

District. M.H. sued the same parties but substituted Morrison for Ramon. Each brought a slew

of claims. They sued under § 1983, claiming deprivations of substantive due process and equal

protection and asserting supervisory liability for failure to train. They also sued under the

Rehabilitation Act, the ADA, and Title VI and brought some state law claims.

After discovery, defendants moved for summary judgment in both cases. The district

court granted the motions in a single opinion. Now, plaintiffs appeal. Like the district court, we

decide the cases in a single opinion. We affirm.

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 7

II.

Plaintiffs object to several of the district court’s rulings.2 To start, they say the district

court erred by ignoring on summary judgment transcripts of school officials’ interviews with

police. The court ignored this evidence because it was hearsay and was unsworn. “Whether the

proffered evidence is hearsay under the Federal Rules of Evidence is a question of law that we

review de novo.” Carter v. Univ. of Toledo, 349 F.3d 269, 274 (6th Cir. 2003).

Plaintiffs also say that the district court erred in dismissing their many substantive claims.

We review the district court’s grant of summary judgment on these claims de novo. Id. at 272.

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). We draw reasonable inferences in favor of the nonmoving party. Carter, 349 F.3d at 272.

But once a party moves for summary judgment and identifies record materials showing no

genuine dispute of material fact, the nonmoving party “must make an affirmative showing with

proper evidence in order to defeat the motion.” Alexander v. CareSource, 576 F.3d 551, 558

(6th Cir. 2009). It must point to “materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations . . . , admissions,

interrogatory answers, or other materials” that show a genuine dispute of material fact. Fed. R.

Civ. P. 56(c)(1)(A).

III.

We begin with the evidence the district court refused to consider: the police interview

transcripts.3 The Akron police, while investigating Hendon, interviewed members of Leggett’s

staff and recorded these interviews. Later, a notary public transcribed the interviews from the

2

There were also several rulings plaintiffs do not challenge here. For instance, they do not appeal the

court’s dismissal of their equal-protection and state-law claims or several of their bases for municipal liability. They

thus abandon those claims. See United States v. Johnson, 440 F.3d 832, 845–46 (6th Cir. 2006).

3

The district court also excluded an affidavit that M.H. (W.H.’s mother) filed to the extent that it

contradicted her deposition testimony. Plaintiffs spend a single sentence objecting to this ruling. They say only that

the district court “failed to consider evidence from M.H.’s affidavit that was consistent with her prior testimony.”

(20-3462 Appellant Br. at 27.) Given this bare-bones briefing, plaintiffs forfeit their argument. See, e.g., Bard v.

Brown County, 970 F.3d 738, 750 (6th Cir. 2020).

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 8

audio file. And plaintiffs cited these transcripts in their response brief opposing defendants’

motions for summary judgment. Then, in their reply to that brief, defendants “moved” to strike

citations to those transcripts because they constituted unsworn hearsay.

Agreeing with defendants, the district court ignored the transcripts when deciding the

summary judgment motion. It reasoned that the statements were unsworn and constituted

inadmissible hearsay.4 It did not err in ignoring the transcripts on the hearsay ground.

At the outset, defendants claim plaintiffs forfeited the argument that the transcripts are

not hearsay by failing to raise it before the district court. But defendants themselves did not

“move” to strike references to the transcripts until the final brief on the summary judgment

motion. So plaintiffs, under defendants’ theory, would have had to ask for leave to file a

surreply just to preserve the issue. But a party need not “seek leave to file a sur-reply in order to

preserve an argument for purposes of appeal.” Hardrick v. City of Bolingbrook, 522 F.3d 758,

763 n.1 (7th Cir. 2008). Otherwise, “arguments before the district court would proceed ad

infinitum making litigation unruly and cumbersome.” Id. Plaintiffs therefore did not forfeit their

argument that the court should consider the interview transcripts.

Of course, that does not mean plaintiffs win this issue on its merits. “[E]vidence

submitted in opposition to a motion for summary judgment must be admissible.” U.S.

Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1189 (6th Cir. 1997). And hearsay—an

out-of-court statement offered for its truth, Fed. R. Evid. 801(c)—is inadmissible unless the

Federal Rules of Evidence or a federal statute provides otherwise. Fed. R. Evid. 802. Thus, at

summary judgment, hearsay “must be disregarded.” U.S. Structures, Inc., 130 F.3d at 1189.

4

The district court’s (and defendants’) focus on the fact that the interviewees’ initial statements to police

were unsworn appears to rely on an old line of cases holding that “a court may not consider unsworn statements

when ruling on a motion for summary judgment.” Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968–69 (6th

Cir. 1991). But those cases arose from the old Rule 56—which required that “[i]f a paper or part of a paper is

referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit.” Fed. R. Civ. P.

56(e)(1) (old rule). In 2010, though, Rule 56 underwent revision. And “the amended rule specifically ‘omit[s] as

unnecessary’ ‘[t]he requirement that a sworn or certified copy of a paper referred to in an affidavit or declaration be

attached to the affidavit or declaration.’” Ganesh v. United States, 658 F. App’x 217, 220 (6th Cir. 2016) (quoting

Fed. R. Civ. P. 56(c) advisory committee’s note to 2010 amendment). So the fact that the interviewees’ statements

to police were themselves unsworn is not a basis under Rule 56 for ignoring them on summary judgment.

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 9

Heeding the call of Federal Rule of Evidence 802, plaintiffs point to the hearsay

exemption in Rule 801(d)(2)(D) to try and get the police transcripts in. Rule 801(d) treats certain

statements that might otherwise be hearsay as “not hearsay.” And under 801(d)(2)(D), a

statement is not hearsay if it is “offered against an opposing party” and “was made by the party’s

agent or employee on a matter within the scope of that relationship and while it existed.”

Plaintiffs say that the interview transcripts satisfy 801(d) because the interviewees—Philomena

Vincente,5 Patricia Derita, and Holly DeLisi—were defendants’ employees.6

We have not spent much time discussing the contours of Rule 801(d)(2)(D) and its

“scope” requirement. On its face, it requires that the statement be “made on a matter within the

scope of” the employment relationship. Fed. R. Evid. 801(d)(2)(D). The “matter” the

interviewees discussed was their observation of Christopher Hendon’s criminal activity on

Leggett’s grounds. So the question is whether this was within the scope of the interviewees’

employment.

We assume that it was. Akron City Schools’ administrative guidelines state that when

“the police conduct a criminal investigation in a school building,” and they “want to question the

staff,” then “they should be permitted to do so.” (R. 92-21, Akron City Schools Administrative

Guidelines at 1, PageID # 3918.) School employees have no official duty to speak to police, but

the school encourages them to do so. And it would be odd for the school to encourage its

employees in an official policy statement to cooperate with police and then disclaim their words

as outside of their employment when they do so.

In any event, the real problem is that plaintiffs have failed to show that they suffered any

prejudice from the transcripts’ exclusion. “A party may claim error in a ruling to admit or

exclude evidence only if the error affects a substantial right of the party.” Fed. R. Evid. 103(a);

5

Vincente is herself a defendant. But plaintiffs do not capitalize on Rule 801(d)(2)(A), which treats as not

hearsay statements made by an opposing party in her individual or official capacity and offered against her. And the

burden of showing that a statement fits an 801(d) exception is on the party introducing the statement. Wright &

Miller, Federal Practice & Procedure: Evidence § 6776.

6

One other individual whom police interviewed, Angel Schliskey, does not work at Leggett. She

sometimes volunteers at the school. Though in some cases a volunteer might qualify as an “agent” under Rule

801(d), see EEOC v. Watergate at Landmark Condo., 24 F.3d 635, 639–40 (4th Cir. 1994), nothing in this record

suggests that she is an “agent or employee” of the District or Board of Education. See Fed. R. Evid. 801(d)(2)(D).

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 10

see also Tompkin v. Philip Morris USA, Inc., 362 F.3d 882, 900 (6th Cir. 2004). But plaintiffs

deposed most of the same witnesses (including the named individual defendants) whose police

interviews they now try to cite. And plaintiffs have been unable to articulate what exactly sets

the transcripts apart from the depositions they took. So it is unclear what the transcripts can add

to our resolution of this case that the record does not already contain. See Tompkin, 362 F.3d at

900 (“Assuming that this testimony was relevant . . . and also assuming that the testimony was

not inadmissible hearsay, Tompkin has not shown that she was prejudiced by the exclusion of

this testimony.” (footnotes omitted)); see also In re Air Crash Disaster, 86 F.3d 498, 526 (6th

Cir. 1996) (noting that there is no prejudice from the exclusion of evidence if substantially

similar evidence was admitted or if the excluded evidence would not have affected the outcome).

Thus, we affirm the district court’s exclusion of these interview transcripts in deciding

the summary judgment motion.

IV.

A.

We turn next to plaintiffs’ substantive claims, starting with due process.7 Section 1983

provides a statutory cause of action for the deprivation of federal rights, privileges, or immunities

by those acting under color of state law. 42 U.S.C. § 1983. Plaintiffs claim through § 1983 that

defendants deprived them of due process by creating the danger to which they were exposed—an

impostor police officer with access to their school, which he used to, among other things, batter

and falsely imprison them.

7

Plaintiffs say defendants never moved for summary judgment on a host of their claims, and so those

claims must go to trial. This argument fails for four reasons. First, in both cases, defendants incorporated related

summary judgment motions, listed all of plaintiffs’ counts and argued individually why they all failed, then asked

the court to “dismiss the claims against them with prejudice.” So defendants asked the district court for summary

judgment on all claims and for all defendants, whether in their individual or official capacities. See Apache Corp. v.

W & T Offshore, Inc., 626 F.3d 789, 798–99 (5th Cir. 2010). Second, the district court dismissed “[a]ll federal

claims” with prejudice in both the M.J. and M.H. cases. (R. 127, Mem. Op. & Order at 49, PageID # 5560.) Third,

plaintiffs responded to the motions for summary judgment and discussed the causes of action they say defendants

did not address in their motions. See C.G. v. Gann, 231 F. App’x 851, 853 n.1 (11th Cir. 2007). And finally,

plaintiffs in those responses failed to argue that defendants did not move for summary judgment as to all their

claims. See, e.g., Frazier v. Jenkins, 770 F.3d 485, 497 (6th Cir. 2014) (“Generally, we will not address arguments

raised for the first time on appeal.”).

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 11

Plaintiffs rely on the substantive component of the Fourteenth Amendment. That

amendment provides that no state can deprive a person of life, liberty, or property without due

process. U.S. Const. amend. XIV, § 1. “But nothing in the language of the Due Process Clause

itself requires the State to protect the life, liberty, and property of its citizens against invasion by

private actors.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989).

So the clause does not “impose an affirmative obligation on the State to ensure that those

interests do not come to harm through other means.” Id. And, in general, “a State’s failure to

protect an individual against private violence simply does not constitute a violation of the Due

Process Clause.” Id. at 197.

At the same time, “in certain limited circumstances the Constitution imposes upon the

State affirmative duties of care and protection with respect to particular individuals.” Id. at 198.

One such instance is when the state renders a person “more vulnerable to” the dangers that befell

him. Id. at 201. Thus, we have held that “when the State ‘cause[s] or greatly increase[s] the risk

of harm to its citizens . . . through its own affirmative acts,’ it has established a ‘special danger’

and a duty to protect its citizens from that risk.” Jones v. Reynolds, 438 F.3d 685, 690 (6th Cir.

2006) (alterations in original) (quoting Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th

Cir. 1998)).

This is known as the state-created danger doctrine. And it imposes a demanding

standard. To succeed with it, plaintiffs must show three things. First, they must show “an

affirmative act by the state which either created or increased the risk that [they] would be

exposed to an act of violence by a third party.” Cartwright v. City of Marine City, 336 F.3d 487,

493 (6th Cir. 2003). Next, they must establish “a special danger to [them] wherein the state’s

actions placed [them] specifically at risk, as distinguished from a risk that affects the public at

large.” Id. And finally, they must show that the state was aware of the “substantial risk of

serious harm” and responded in a way that was “conscience shocking.” Doe v. Jackson Local

Sch. Bd. of Educ., 954 F.3d 925, 934 (6th Cir. 2020).

Both sets of plaintiffs bring § 1983 claims against Vincente. W.H. also makes a § 1983

claim against Morrison, and M.J. against Ramon. They allege that Vincente gave Hendon access

to Leggett, which allowed him to perpetrate his crimes, that she allowed Hendon to use school

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 12

facilities to deal with children, and that she witnessed Hendon abuse children and place them in

handcuffs. M.J. alleges that Ramon called for assistance, and when Hendon showed up, she

allowed him to take M.J. out of class. Finally, W.H. alleges that Morrison let Hendon interact

with W.H.’s mother and allowed Hendon to handcuff W.H. But because none of these

allegations suffices to make out a state-created danger, we affirm the grant of summary judgment

on these claims.

1.

We can dispense in short order with the claim against Ramon. The most that can be said

about her is that she did not prevent Hendon from taking M.J. from her class. But a “failure to

act is not an affirmative act under the state-created danger theory.” Id. So even if Ramon “stood

by and did nothing when suspicious circumstances dictated a more active role for” her, this is not

enough. DeShaney, 489 U.S. at 203; see also Chigano v. City of Knoxville, 529 F. App’x 753,

757 (6th Cir. 2013) (“Generally . . . the failure to protect a person from violence at the hands of a

third party is not a constitutional violation.”). M.J.’s claim against Ramon thus fails at the first

step of the state-created danger doctrine.

2.

The claim against Morrison also fails. Recall that Morrison called M.H. after W.H. got

into a fight with one of his classmates. And while they were speaking, Hendon interjected and

insisted that Morrison allow him to speak to M.H., a request Morrison granted. That is the extent

of Morrison’s involvement here.

Whether this phone exchange is an “affirmative act” within our state-created danger

jurisprudence is a close question. Normally, to answer such a question, we ask “whether [the

victim] was safer before the state action than he was after it.” Cartwright, 336 F.3d at 493. But

we need not resolve this close call. We can reasonably infer, as we must at this stage of the

litigation, that W.H. was safer before Morrison handed Hendon the phone because Hendon may

have used the opportunity to convince M.H. that he was a police officer with authority to

handcuff her son.

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 13

But M.H.’s substantive due process claim still fails. “[I]n addition to showing the

requisite state action, [plaintiffs] must show the requisite state culpability necessary for a Due

Process Clause action.” Bukowski v. City of Akron, 326 F.3d 702, 710 (6th Cir. 2003). This is

the third prong of the state-created danger doctrine. It requires a showing of at least deliberate

indifference. And “[t]he government’s conduct must be so egregious that it can be said to be

arbitrary in the constitutional sense.” McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 469 (6th

Cir. 2006) (quotations omitted). This is a high bar—one that surpasses mere negligence. Doe,

954 F.3d at 932. “[O]nly extreme misconduct”—conduct that shocks the conscience—“will

violate the [Due Process] clause.” Id. at 933.

The requisite level of culpability depends on the nature of the government’s act. The

“deliberate-indifference standard is appropriate in ‘settings [that] provide the opportunity for

reflection and unhurried judgments,’ but . . . a higher bar may be necessary when opportunities

for reasoned deliberation are not present.” McQueen, 433 F.3d at 469 (first alteration in original)

(quoting Bukowski, 326 F.3d at 710). Thus, “an actual intent to injure is required when public

actors must make hasty decisions.” Doe, 954 F.3d at 933; see also County of Sacramento v.

Lewis, 523 U.S. 833, 852–53 (1998). But when the official has time for reflection, deliberate

indifference requires that he “must be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he must also draw the inference.” Doe, 954

F.3d at 933 (quotations omitted). Once the official learns of facts allowing him to infer a risk of

harm, “the official next must act or fail to act in a manner demonstrating reckless or callous

indifference toward the individual’s rights.” Id. (quotations omitted).

But there is no evidence here that Morrison was deliberately indifferent when she handed

Hendon the phone. She—along with other school officials and parents—thought Hendon was a

legitimate police officer. And she did not listen to Hendon’s conversation with M.H. or

otherwise see Hendon place other children in handcuffs. In fact, up to the time Hendon took the

phone from Morrison, her interactions with him were all positive. He passed Morrison’s class in

the halls and encouraged her students to behave well and get good grades. So the record

discloses no facts that would have allowed Morrison to infer that a substantial risk of serious

harm to W.H. existed—let alone that Morrison drew that inference. Doe, 954 F.3d at 933.

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 14

Besides, when Hendon approached Morrison and asked her for the phone, Morrison did not have

time for reflection and unhurried judgment, so a stricter level of culpability applies. Id.;

McQueen, 433 F.3d at 469. And nothing here suggests Morrison acted with an intent to injure

W.H. when she let Hendon speak to M.H. Doe, 954 F.3d at 933. So W.H.’s substantive due

process claim against Morrison fails.

3.

That just leaves Vincente. Both sets of plaintiffs sue her. But W.H. alleges only that

Vincente did not stop Hendon from walking around Leggett and interacting with students. This

type of inaction fails to meet the first requirement in the state-created danger doctrine.

Cartwright, 336 F.3d at 493; see also DeShaney, 489 U.S. at 203. Thus, for W.H.’s claim

against Vincente, we affirm the district court’s grant of summary judgment.

M.J.’s claim against Vincente is a bit more complicated. By way of reminder, Vincente

directed Hendon to a room so that he could discipline M.J. This qualifies as an affirmative act

under the state-created danger doctrine. Cartwright, 336 F.3d at 493. And in that room, Hendon

allegedly battered M.J. and called him derogatory names.

Noting this, the district court refused to grant summary judgment on the merits of the

claim. The court reasoned that Vincente knew Hendon wanted to restart the Scared Straight

program, knew handcuffing children constituted corporal punishment, and knew Hendon had

been handcuffing children. And it is disputed when Vincente learned all these facts in relation to

her decision to allow Hendon a private room to discipline M.J. Thus, the court refused to grant

Vincente summary judgment on the merits of M.J.’s due process claim. It did, however, grant

her summary judgment in the end because it found she was entitled to qualified immunity.

But in denying Vincente summary judgment on the merits of the Fourteenth Amendment

claim, the district court misconstrued the “demanding” culpability standard our precedent lays

out. Doe, 954 F.3d at 933. Indeed, “[t]o be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, a public official must know of more than

a general risk of harm.” Id. at 933–34 (quotations and citation omitted). Instead, “[t]he official

must know of the specific risk that later develops.” Id. at 934; see McQueen, 433 F.3d at 469.

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 15

So even if a jury could fault an official’s response to certain facts, there is no constitutional

violation if the official was unaware of facts from which she could infer a risk of harm of the

type that actually happened. Range v. Douglas, 763 F.3d 573, 591 (6th Cir. 2014).

But here, the facts the district court laid out as allowing Vincente to infer a risk of harm

do not translate into the actual harm that befell M.J. The court pointed to Vincente’s knowledge

that Hendon was handcuffing students—a prohibited practice. But this is not the harm that befell

M.J. as a result of Vincente’s affirmative act. Instead, Hendon threw M.J. against a wall, tables,

and chairs and used racial epithets against him. And “nothing about the ‘kind and degree of

risk’” arising from Hendon handcuffing students suggested that he “also posed a risk of”

violently throwing students around a room. Doe, 954 F.3d at 935 (quoting Range, 763 F.3d at

591). Indeed, Vincente “had no knowledge of [Hendon] ever attacking students.” Id.8

And it is not enough that handcuffing students and throwing them around rooms both

constitute battery. Consider McQueen. There, a student had a history of violently attacking

students with a pencil. 433 F.3d at 462. But his teacher’s knowledge of this history did not

translate into knowledge that the same student might later bring a gun to school and shoot

another student. Id. at 469–70. And if knowledge of violent battery with a pencil cannot

establish subjective awareness of a risk of battery with a gun, neither can knowledge of

handcuffing students establish subjective awareness of a risk of violent battery and verbal abuse.

Id.; see Doe, 954 F.3d at 935.

The actual harm that M.J. experienced because of Vincente’s affirmative act is not the

type that Vincente could have inferred from known facts. Because we may affirm on any ground

supported by the record, we affirm the district court’s grant of summary judgment. See, e.g.,

Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879, 886 (6th Cir. 2020).

B.

Plaintiffs also sue the Akron City School District and its Board of Education. They say

these defendants are liable under § 1983 for failing to train their employees in spotting dangers to

8

Here again, we note that plaintiffs have failed to identify whether there are any statements that Vincente

made during her interview by the Akron police that would affect this analysis.

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 16

students. The district court disagreed, and so do we. A municipality “can only be held liable if

there is a showing of an underlying constitutional violation by” its officials. Andrews v. Wayne

County, 957 F.3d 714, 725 (6th Cir. 2020) (quoting Burkey v. Hunter, 790 F. App’x 40, 41 (6th

Cir. 2020)). In other words, “[t]here can be no . . . municipal liability under § 1983 unless there

is an underlying unconstitutional act.” Wilson v. Morgan, 477 F.3d 326, 340 (6th Cir. 2007).

And here, none of the school employees is liable under plaintiffs’ substantive due process theory.

So the district court correctly granted summary judgment for defendants on this claim.

C.

Plaintiffs also claim that the school and its employees9 violated the Rehabilitation Act

and the ADA. They note that both W.H. and M.J. are disabled, and they argue that school

officials targeted the students because of these disabilities. “Given the similarities in the two

statutory provisions, we long have merged our analyses under the ADA and Rehabilitation Act.”

Qiu v. Univ. of Cincinnati, 803 F. App’x 831, 836 (6th Cir. 2020).

Both the ADA and the Rehabilitation Act combat discrimination against disabled

individuals. Gohl v. Livonia Pub. Schs. Sch. Dist., 836 F.3d 672, 681 (6th Cir. 2016). Title II of

the ADA provides that “no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the services, programs,

or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.

§ 12132. And the Rehabilitation Act provides that a qualified individual with a disability shall

not, “solely by reason of her or his disability, be excluded from the participation in, be denied the

benefits of, or be subjected to discrimination under any program or activity receiving Federal

financial assistance.” 29 U.S.C. § 794(a). Both Acts allow disabled individuals to sue school

districts that discriminate against them because of their disability. Gohl, 836 F.3d at 681.

Plaintiffs can defeat summary judgment here through either a direct or indirect showing

of discrimination. Id. at 682. “Direct evidence explains itself.” Martinez v. Cracker Barrel Old

9

Neither the ADA nor the Rehabilitation Act supports a claim against a public official acting in his or her

individual capacity. See, e.g., Everson v. Leis, 556 F.3d 484, 501 n.7 (6th Cir. 2009); Lee v. Mich. Parole Bd., 104

F. App’x 490, 493 (6th Cir. 2004). So plaintiffs can only lodge these claims against the school officials in their

official capacities and the District and Board of Education.

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 17

Country Store, Inc., 703 F.3d 911, 916 (6th Cir. 2013). It does not require the factfinder to make

any inferences before concluding that unlawful discrimination happened. Id. But plaintiffs’

evidence of discrimination here requires the inferential leap that the teachers sought Hendon’s

assistance because of their students’ disabilities, and that the students acted out because of their

disabilities. This is not direct evidence; there is “no smoking gun.” Gohl, 836 F.3d at 683.

Plaintiffs’ chain of reasoning requires us to infer that the students’ disabilities caused both their

misbehavior and the teachers’ responses to it. So plaintiffs cannot succeed on a direct showing.

Nor can they succeed on an indirect showing. To move forward on an indirect showing,

plaintiffs “must meet the requirements of the familiar McDonnell Douglas test,” which we apply

to both statutes. Id. at 682. This requires plaintiffs to make out a prima facie case of

discrimination. Id. They must show that (1) they are disabled; (2) they are “otherwise qualified”

to participate in the public program; (3) they were subject to discrimination because of their

disabilities; and (4) the program receives federal funding (for the Rehabilitation Act only). Id.

Plaintiffs say, and defendants do not contest, that M.J. and W.H. are disabled. The only

point of contention is causation. And to establish the causation that both Acts require, “the

plaintiff must establish a but-for relationship between the protested act and the individual’s

disability.” Id. So under the ADA, plaintiffs must present “sufficiently ‘significant’ evidence of

animus toward the disabled that is a but-for cause of the discriminatory behavior.” Id. (quoting

Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015)). And showing causation under

the Rehabilitation Act is even harder. Plaintiffs must show that the school and its employees

discriminated against them “solely by reason of” their disability. 29 U.S.C. § 794(a). At any

rate, under each Act, plaintiffs must present evidence of how the school treated comparable, non-

disabled students. Mitchell v. Toledo Hosp., 964 F.2d 577, 582–83 (6th Cir. 1992); see also

Gohl, 836 F.3d at 683.

But plaintiffs here fail to point to any comparators.10 They note that Hendon handcuffed

a few other students to bring them home or reprimand them. And they say Hendon forced one of

10

This is especially difficult to do against Theresa Morrison. As we have pointed out, McDonnell Douglas

is of “little help in the context of a claim involving a teacher who works only with individuals in a protected group.”

Gohl, 836 F.3d at 683. And Morrison works only with students with learning disabilities.

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 18

M.J.’s classmates to exercise alongside him. But they say nothing about whether these students

were also disabled. And they introduced no evidence detailing which students the school

mistreated and which they did not. So “there is no evidence in the record about how

any ‘comparable non-protected’ people were treated.” Gohl, 836 F.3d at 683. And “[i]n the

absence of evidence of a well-treated comparator, [plaintiffs] cannot prove that discrimination

against the disabled was the reason for” their mistreatment. Id.

Without comparators, plaintiffs cannot make an indirect showing of discrimination. And

because plaintiffs have not offered direct evidence of discrimination, their ADA and

Rehabilitation Act claims fail.

D.

Plaintiffs present one last cause of action: Title VI. They say that because Hendon

targeted only African American children, a jury could infer that the students’ race motivated the

harassment. But the district court rejected this theory, noting there was no evidence of race

discrimination by defendants. We agree.11

Title VI prohibits any “program or activity receiving Federal financial assistance” from

discriminating against any person “on the ground of race, color, or national origin.” 42 U.S.C.

§ 2000d. And it provides a private cause of action for injunctive relief and damages. Alexander

v. Sandoval, 532 U.S. 275, 279 (2001). But it proscribes only intentional discrimination. Id. at

280.

And for that reason, plaintiffs’ Title VI claim fails. They have not identified a single

piece of record evidence suggesting intentional discrimination. At most, they claim Hendon

targeted only African American children, and the school could not identify any white children

whom Hendon targeted. But even that is not an allegation of intentional discrimination by school

officials. And plaintiffs’ contention that school officials knew about Hendon’s harassment of

11

“[T]here is no vicarious liability under Title VI.” Foster v. Michigan, 573 F. App’x 377, 389 (6th Cir.

2014). And plaintiffs have not established that the District, the Board of Education, or Superintendent James

“participated in, [were] aware of, or [were] deliberately indifferent to any discriminatory acts.” Id. So the Title VI

claim against them fails.

Nos. 20-3461/3462 M.J., et al. v. Akron City Sch. Dist. Bd. of Educ., et al. Page 19

several students does not suffice, either. They must allege intentional discriminatory acts by a

public official and support that allegation with evidence. See id. at 280. They do not.

V.

The events that triggered this lawsuit are undoubtedly upsetting. And perhaps plaintiffs

can look to state law to find some relief. But, for the reasons given, they cannot succeed on their

federal claims. We AFFIRM the district court’s grant of summary judgment.