Jasmine Adams v. Demopolis City Schools

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-11317

____________________

JASMINE ADAMS,

Individually and as Natural Parent of

McKenzie Adams, Deceased,

JANICE ADAMS,

As the Personal Representative of the

Estate of McKenzie Adams,

Plaintiffs-Appellants,

versus

DEMOPOLIS CITY SCHOOLS,

KYLE KALLHOFF,

TORI INFINGER,

GLORIA MIMS,

TRACY STEWART,

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2 Opinion of the Court 22-11317

Defendants-Appellees,

U.S. JONES ELEMENTARY SCHOOL,

Defendant.

____________________

Appeal from the United States District Court

for the Southern District of Alabama

D.C. Docket No. 2:20-cv-00027-TFM-N

____________________

Before JILL PRYOR, GRANT, and HULL, Circuit Judges.

JILL PRYOR, Circuit Judge:

“N*****,” 1 “black bitch,” “dumb black bitch,” “pussy ass

bitch,” “go kill yourself.” These are the words that nine-year-old

McKenzie Adams heard from her fourth-grade classmate before

she took her life in December of 2018. After McKenzie’s death, her

mother, Jasmine Adams, and her grandmother, Janice Adams,

sought to hold McKenzie’s school system and several school offi-

cials accountable for her death. The Adamses filed a lawsuit assert-

ing claims arising under federal and state law against the school

1 We have sanitized one of the racial epithets repeatedly directed at McKenzie

Adams by replacing the full slur used with “n*****.” In doing so, we do not

mean to diminish its impact.

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22-11317 Opinion of the Court 3

system and the school officials. The district court granted summary

judgment to the school system and its officials, concluding that the

Adamses failed to satisfy various elements of their federal statutory

claims and that qualified immunity barred at least one of the

claims. As to the Alabama tort claims, the court concluded that the

school system and its officials were entitled to immunity under

state law. And even if they were not entitled to immunity, the court

continued, the school system and officials did not proximately

cause McKenzie’s injury because her suicide was an unforeseeable

act that cut off any proximate causation.

The Adamses appeal the district court’s grant of summary

judgment on all their claims. After careful consideration of the rec-

ord, and with the benefit of oral argument, we affirm. Although

the response of the school system and its officials was truly discour-

aging, the standard for relief in cases of student-on-student harass-

ment is exacting. Thus, despite the tragic facts of this case, we af-

firm the district court’s decision granting summary judgment to

the school system and its officials.

I. BACKGROUND

In this section, we begin by describing the bullying that

McKenzie faced in the months leading up to her death. We then

discuss the policies the school system had in place to address bully-

ing and suicide prevention. Lastly, we recount the litigation that fol-

lowed McKenzie’s death.

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4 Opinion of the Court 22-11317

A. The Bullying

McKenzie Adams, a nine-year-old Black girl, attended U.S.

Jones Elementary School in Demopolis, Alabama. 2 The school was

a part of Demopolis City Schools school district (“DCS”). In Au-

gust 2018, McKenzie began attending the elementary school as a

fourth-grade student. She lived with her grandmother, Janice Ad-

ams, in Demopolis but kept in close contact with her mother, Jas-

mine Adams, who lived in Tuscaloosa.

Almost immediately after the start of the school year,

McKenzie was bullied. One of the students who was bullying

McKenzie was E.C. 3 E.C. was a White male student, similar in age

to McKenzie. Beginning in August, McKenzie told her grand-

mother that E.C. was bothering her at school. McKenzie reported

that E.C. called her names almost every day. The comments he

made to McKenzie included: “black bitch, dumb black bitch, you

n*****, go kill yourself, [and] [p]ussy.” Doc. 189-11 at 49. 4 Another

student, C.J., heard E.C. call McKenzie “n*****” multiple times.

Doc. 189-13 at 25–26. A different student recalled hearing E.C. tell

McKenzie that she was “too dark,” a reference to her skin complex-

ion. Doc. 189-15 at 24.

2 Given our standard of review at the summary judgment stage, in recounting

the facts of this case, we accept the Adamses’ version of disputed facts and

draw all reasonable inferences from those facts in their favor. See Rowe v. City

of Fort Lauderdale, 279 F.3d 1271, 1279 n.9 (11th Cir. 2002).

3 We identify the students, who are minors, by the initials used by the parties.

4 “Doc.” numbers refer to the district court’s docket entries.

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Other students also bullied McKenzie. C.J. recalled that, at

least once, two other male students (D.M. and C.T.) pulled McKen-

zie’s hair, hit her, and slapped her in the back. C.J. also described an

instance where McKenzie mistakenly stepped on the back of an-

other student’s shoe. That student (C.T.) called McKenzie “black

motherfucker” in return. Doc. 189-13 at 24–25. Several students

(E.C., D.M., and C.T.) criticized McKenzie’s hair.

Once when C.J. heard E.C. call McKenzie “n*****,” he told

Gloria Mims, one of McKenzie’s teachers. Another time, when

Mims heard E.C. call McKenzie “n*****,” she disciplined E.C. by

sending him to the office and memorializing the incident in writ-

ing—“[s]he wrote him up.” Id. at 26. E.C. received several days of

in-school suspension for the incident.

On yet another occasion, C.J. and another student reported

the bullying to Mims and Whitney Mosley, McKenzie’s homeroom

teacher. When the teachers tried to confirm the bullying instances

with McKenzie, she denied that there was any bullying and said

that the other students were just playing with her.

But this harsh treatment from her classmates plainly upset

McKenzie. She would cry or sit at her desk and lay her head down.

After McKenzie told her grandmother about the bullying, Janice

advised her to report it to Mims. McKenzie responded that she had

already done so. She told Janice that Mims would either send E.C.

into the hallway (as a form of discipline) or tell McKenzie to go sit

down.

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In late August, Janice called the school to speak with Mims

about the bullying. Mims never called her back. Around the same

time McKenzie received her school progress report, which detailed

her current achievement levels in each classroom subject. Janice

and McKenzie’s mother were surprised to see that she had received

a D letter grade in math. The D was unusual because McKenzie

normally earned As and Bs on her classwork. Janice wrote a note

on the progress report, “Need conference with Ms. Mims, not

happy about math grade at all.” Doc. 189-11 at 63. Janice listed her

phone number on the note so that Mims could call her. Janice gave

the progress report with the note to McKenzie so that she could

return it to her teacher.

By September, nobody from the school had called or other-

wise reached out to Janice. Janice then went to the school to speak

directly to Mims. Janice and Mims spoke about McKenzie’s grades.

Janice told Mims that E.C. was bullying McKenzie and that she be-

lieved McKenzie received a D on her progress report because of the

bullying. Mims responded that McKenzie was talking a lot in class.

Janice mentioned that the misbehavior was probably because of

the bullying. Janice stated that she would resolve the talking issue

with McKenzie, but Mims needed to address E.C.’s bullying.

The bullying continued. In October, while Janice was at the

school to participate in a school event, she attempted to speak with

Mims about McKenzie and E.C. But Mims was surrounded by

other parents who were also trying to speak with her. Because

Janice could not wait, she told Mims that she could not stay but was

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leaving her name and number because she needed to speak with

Mims about McKenzie and E.C. Mims did not reach out to Janice,

however.

A few weeks later, in late October or early November, Assis-

tant Principal Tracy Stewart called Janice to discuss an incident in

which McKenzie was written up for misbehavior. Stewart told

Janice that McKenzie and another student were passing a note back

and forth in class. Although Stewart would not tell Janice the iden-

tity of the other student involved, McKenzie later told Janice that

the other student was E.C. The note read:

E.C.: hey little pussy sucker what up

McKenzie: I hate you

E.C.: But you like asshole dumb ass bitch

E.C.: pussy=McKenzie

McKenzie: You are u-g-l-y bitch

E.C.: Your uglier than big birtha u bitch pussy bitch

suck it fuck you

McKenzie: . . . [three dots were drawn]

E.C.: What the hell do you mean

McKenzie: Sorry can’t talk

E.C.: fuck you[.]

Doc. 181-17 at 2.

After learning that E.C. was the other student involved in

the note-passing, Janice told Stewart that E.C. had been bullying

McKenzie since the school year started. Stewart explained she

nonetheless had to discipline McKenzie because McKenzie had

written profanity, “bitch,” on the note. Janice agreed that McKenzie

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should be disciplined, but she said Stewart “need[ed] to do some-

thing about [E.C.] bullying [McKenzie].” Doc. 189-11 at 85.

Initially, Stewart responded that she did not know about any

bullying behavior directed at McKenzie. But upon hearing about

the bullying, she discussed a plan with Janice that would allow

McKenzie to leave her classroom any time she felt threatened (the

“safety plan”). Stewart assured Janice that she would notify all of

McKenzie’s teachers about the safety plan so that McKenzie could

leave their classrooms too. When Janice asked if she needed to sign

the plan or any other documentation, Stewart reassured her that

she did not need to sign anything and Stewart would “take care of

it.” Id. at 84–85.

Before the call ended, Janice asked if she could include Jas-

mine (McKenzie’s mother) on the phone call, and Stewart agreed.

Soon after the call, Janice called Stewart back with Jasmine on the

line. On this call, Janice, Jasmine, and Stewart discussed the in-

stances of bullying and the safety plan. During the call, Jasmine said

that she was going to call a state department to complain about the

bullying. Stewart advised her not to. Stewart assured Janice and Jas-

mine that she would “handle it” and emphasized that the safety

plan would address the problem by allowing McKenzie to leave the

classroom whenever she felt threatened by the bullying. Id. at 86.

Janice never knew whether McKenzie ever used the safety

plan. But she noticed that McKenzie would comment that she had

a good day on the days when E.C. was assigned to in-school sus-

pension, which meant that he was not in the classroom with

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McKenzie on those days. Janice did not follow up further with

Stewart because she saw nothing unusual about McKenzie’s behav-

ior following the phone call. On November 6, unbeknownst to

Janice, McKenzie wrote in her diary, “Might just kill myself for me.

Yep. Said it. I might do it for her, my grandma, Chloe, and me. So

bye.” Id. at 115. 5

On December 3, about five weeks after the safety plan was

put in place, McKenzie wrote in her diary at 1:30 p.m.: “Dear diary

I am in math class like get me out!! I don’t know how to do this

stuff. help . . . [three dots were drawn] Bitch move on. Sup

Bitch. . . . [T]hat fucker [student’s name redacted] in a grave.” Doc.

181-14 at 1. McKenzie returned home from school, hugged her

grandmother, ate a snack, and started to do her homework. Janice

noticed that McKenzie was quieter than usual, but she did not ob-

serve anything else out of the ordinary. Later that day, McKenzie

died by suicide in her grandmother’s home.

The day after McKenzie’s death, one of her classmates vis-

ited Janice at home and reported that E.C. had told McKenzie to

kill herself. Janice then recalled that McKenzie had said that E.C.

told her to “kill [herself ], just die” between August and November

of that year. Doc. 189-11 at 133.

5 This diary entry itself is not included in the record before us. But the record

includes a copy of Janice’s deposition, in which she read the diary entry. Seeing

no reason why the diary entry could not be reduced to admissible form at trial,

we consider it as part of the summary judgment record. Rowell v. BellSouth

Corp., 433 F.3d 794, 800 (11th Cir. 2005).

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B. DCS’s Anti-Bullying Policies

While McKenzie was a student at U.S. Jones Elementary,

DCS had an anti-bullying policy in place. The policy required that

instances of bullying be reported and documented. Before the start

of every school year, DCS required “annual training for all certified

employees [on] suicide awareness and prevention.” Doc. 189-2 at

137. The annual training could be “provided within the framework

of existing in[-]service training programs.” Id. To that end, DCS

teachers and staff completed an annual “Back to Basics” training

that covered the topics of bullying and suicide prevention.

DCS also had in place a “Code of Conduct.” The Code of

Conduct detailed different forms of misconduct and the conse-

quences for such misconduct. It defined bullying as “[c]omitting or

instigating aggressive acts toward another student with the intent

to irritate, intimidate, hurt, or produce a negative reaction from

the other student.” Doc. 189-10 at 9. And it laid out punishment for

bullying by students in kindergarten through fifth grade including

contacting parents, in-school suspension, and out-of-school suspen-

sion.

C. The Adamses’ Lawsuit

Following McKenzie’s death, Jasmine and Janice 6 sued DCS

and several school officials, including Superintendent Kyle

Kallhoff, U.S. Jones Elementary School Principal Tori Infinger,

6 Jasmine sued in her individual capacity. Janice sued in her capacity as the

personal representative of McKenzie’s estate.

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Stewart, and Mims. In the operative complaint, the Adamses al-

leged that before McKenzie’s death, the State of Alabama had en-

acted a statute, the Jamari Terrell Williams Act, that required Ala-

bama public schools to adopt plans or programs that addressed bul-

lying. The Act went into effect shortly before McKenzie’s death.

According to the complaint, DCS failed to implement the policies

the Act required. Without the required policies in place, the Ad-

amses alleged, DCS failed to train officials and teachers on how to

identify and respond to student-on-student bullying.

The operative complaint included 11 counts, with some

claims arising under federal law and others under Alabama law.

Count I alleged that DCS was liable under Title IX 7 because it was

deliberately indifferent to sex-based harassment and discrimination

that it was aware was being directed at McKenzie at school. Count

II alleged that DCS was liable under Title VI 8 for the same reason.

Counts III, IV, VIII, IX, X, and XI pled claims under 42 U.S.C.

§ 1983, alleging that DCS, Kallhoff, and Infinger violated McKen-

zie’s right to substantive due process and equal protection under

the Fourteenth Amendment. And in Counts V, VI, and VII, the Ad-

amses alleged Alabama state-law wrongful death claims against

each of the defendants. Each wrongful death claim was based on

some form of negligent, reckless, or wanton conduct that allegedly

led to McKenzie’s death.

7 Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681.

8 Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.

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The defendants moved for summary judgment on all claims.

The district court granted the motion. The district court explained

to prevail on the Title IX claim against DCS, the Adamses had to

show, among other things, that DCS acted with deliberate indiffer-

ence. The court concluded that DCS’s response to both the specific

instances of bullying that McKenzie faced and the general threat of

bullying did not amount to deliberate indifference.

As to the Adamses’ Title VI claim against DCS and their

equal protection claims against DCS, Kallhoff, and Infinger, the dis-

trict court explained that the Adamses had to show that the defend-

ants acted with an intent to discriminate. In the context of this case,

they had to show that DCS maintained a policy or custom of ignor-

ing student-on-student bullying. The court found no evidence that

DCS acted with an intent to discriminate.

Turning to the Adamses’ substantive due process claims, the

court concluded that the Adamses failed to show a substantive due

process violation because DCS had no constitutional duty to pro-

tect McKenzie. Further, the district court explained that in a non-

custodial setting, conduct by a government actor must be charac-

terized as arbitrary or conscience-shocking to arise to the level of a

substantive due process violation. The court then concluded that

the defendants’ conduct was not arbitrary or conscience-shocking

to give rise to a constitutional deprivation.

Finally, in considering the Adamses state-law tort claims, the

court ruled that the claims against Kallhoff and Infinger were

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barred by state-agent immunity. 9 In any event, the court con-

cluded, under Alabama law, Kallhoff and Infinger’s actions were

not the proximate cause of McKenzie’s injury because her death by

suicide cut off any causal link and barred any tort liability.

The Adamses timely appealed.

II. STANDARDS OF REVIEW

We review an order granting summary judgment de novo

and apply the same legal standards as the district court. Citizens for

Smart Growth v. Sec’y of Dep’t of Transp., 669 F.3d 1203, 1210 (11th

Cir. 2012). Summary judgment is appropriate when the moving

party establishes there is no genuine dispute as to any material fact

and the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P 56(a); see Greenberg v. BellSouth Telecomms, Inc.,

498 F.3d 1258, 1263 (11th Cir. 2007). At the summary judgment

juncture, the court does not “weigh the evidence and determine

the truth of the matter,” but solely “determine[s] whether there is

a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986). Only disputes about material facts will preclude the

granting of summary judgment. Id. at 248. We are required to view

the facts in the light most favorable to the non-moving party. Hill

v. Cundiff, 797 F.3d 948, 967 (11th Cir. 2015).

9 The district court also determined that all the defendants were entitled to

state-agent immunity, but on appeal, the Adamses challenge the court’s deter-

mination only as to Kallhoff and Infinger. Thus, we do not consider whether

the other defendants were entitled to immunity. See United States v. Campbell,

26 F.4th 860, 874–75 (11th Cir. 2022) (en banc).

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A grant of summary judgment on state-agent immunity

grounds is also reviewed de novo. Id.

III. DISCUSSION

On appeal, the Adamses argue that the district court erred

in granting summary judgment to the defendants on all claims. On

their federal Title IX, Title VI, equal protection, and substantive

due process claims, 10 they argue that they presented sufficient evi-

dence to raise a genuine dispute of fact on each of the required el-

ements of each claim. In support of their Alabama wrongful death

claims, the Adamses argue that Kallhoff and Infinger were not en-

titled to state-agent immunity because their conduct did not in-

volve the exercise of judgment or discretion in performing their

official duties.

We begin by addressing the Adamses’ federal claims. We

then turn to their wrongful death claims under Alabama law.

A. Title IX, Title VI, and 42 U.S.C. § 1983 Equal Protection

and Substantive Due Process Claims

The Adamses argue that the district court erred in granting

the defendants summary judgment on their federal claims because

there is at least a genuine dispute of fact on each of the required

10 The Adamses brought both their equal protection and substantive due pro-

cess claims under 28 U.S.C. § 1983. Because our analysis of an equal protection

claim mirrors that of a Title VI claim, see Elston v. Talladega Cnty. Bd. of Educ.,

997 F.2d 1394, 1405 n.11 (11th Cir. 1993), we examine the equal protection and

Title VI claims together and the § 1983 substantive due process claim sepa-

rately.

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elements of each claim. As we will explain, the Adamses must show

deliberate indifference to sustain their Title IX and Title VI claims,

intentional discrimination to sustain their equal protection claims,

and arbitrary or conscience-shocking conduct to sustain their sub-

stantive due process claims. Because the Adamses failed to present

sufficient evidence to show that the defendants’ conduct satisfied

any of these standards, the district court properly granted sum-

mary judgment.

1. Title IX Claim

Under Title IX, “[n]o person . . . shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be sub-

jected to discrimination under any education program or activity

receiving [f]ederal financial assistance.” 20 U.S.C. § 1681. When a

recipient of federal funds intentionally violates Title IX’s prohibi-

tion on discrimination, it may be held liable for money damages.

See Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 74–75 (1992).

In Davis ex rel. LaShonda D. v. Monroe County Board of Educa-

tion, the Supreme Court recognized that Title IX creates a private

right of action for “student-on-student sexual harassment.”

526 U.S. 629, 639, 646–47 (1999). To hold a Title IX funding recipi-

ent 11 accountable for student-on-student sex harassment, a plaintiff

must establish that the public school was “deliberately indifferent

to sexual harassment, of which it has actual knowledge, that is so

11 It is undisputed that DCS is an education program receiving federal financial

assistance.

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severe, pervasive, and objectively offensive that it can be said to

deprive the victim of access to the educational opportunities or

benefits provided by the school.” Hill, 797 F.3d at 968 (alterations

adopted). 12

We conclude that no reasonable jury could find that the de-

fendants acted with deliberate indifference in response to the

known acts of bullying against McKenzie. Thus, we can resolve this

claim based solely on the failure to show deliberate indifference,

without reaching the claim’s other elements. A school is deliber-

ately indifferent only where its response, or lack thereof, to stu-

dent-on-student harassment or discrimination is “clearly unreason-

able” in the light of known circumstances. Davis, 526 U.S. at 648.

To act with deliberate indifference, a school district or official

“must know of and disregard an excessive—that is, an extremely

great—risk to the victim’s health or safety.” L.S. ex rel. Hernandez v.

Peterson, 982 F.3d 1323, 1330 (11th Cir. 2020).

A school district is not deliberately indifferent simply be-

cause the measures it takes to stop the harassment or discrimina-

tion ultimately are ineffective. See Sauls v. Pierce Cnty. Sch. Dist.,

12 Said differently, a plaintiff must prove four elements to establish a Title IX

violation: (1) the defendant is a federal funding recipient; (2) an appropriate

person had actual knowledge of the alleged harassment or discrimination; (3)

the defendant was deliberately indifferent to the alleged harassment or dis-

crimination; and (4) the harassment or discrimination was so severe, perva-

sive, and objectively offensive that it effectively barred the victim’s access to

an educational opportunity or benefit. Williams v. Bd. of Regents of Univ. Sys. of

Ga., 477 F.3d 1282, 1294–98 (11th Cir. 2007).

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399 F.3d 1279, 1285 (11th Cir. 2005); see also Doe v. Taylor Indep. Sch.

Dist., 15 F.3d 443, 456 n.12 (5th Cir. 1994) (en banc) (explaining that

a school official may not be deliberately indifferent where it

“warn[s] the state actor, notif[ies] the student’s parents, or re-

mov[es] the student from the teacher’s class” even if those re-

sponses are ineffective). Rather, to rise to the level of deliberate in-

difference, the response to the harassment or discrimination must

amount to “an official decision . . . not to remedy the violation.”

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998); accord

Doe v. Sch. Bd. of Broward Cnty., 604 F.3d 1248, 1259 (11th Cir. 2010).

Deliberate indifference is an exacting standard; neither negligence

nor mere unreasonableness is enough. Davis v. Carter, 555 F.3d 979,

983 (11th Cir. 2009).

The Adamses argue that DCS was deliberately indifferent

(1) by ignoring the instances of bullying directed at McKenzie and

(2) by failing to adopt anti-bullying policies as required by the Ja-

mari Terrell Williams Act. To evaluate each argument, we take a

close look at the facts in evidence.

First, we consider DCS’s response to the instances of known

bullying 13 directed at McKenzie. For starters, Mims knew that

13 For purposes of this appeal, we assume that the harassment McKenzie en-

dured was the type of harassment included within the broad sweep of Title IX.

N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521 (1982) (“There is no doubt that

if we are to give Title IX the scope that its origins dictate, we must accord it a

sweep as broad as its language.” (alteration adopted and internal quotation

marks omitted)); Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 810

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18 Opinion of the Court 22-11317

McKenzie was being bullied. After Mims heard E.C. call McKenzie

“n*****,” she disciplined him by writing him up and sending him

to the office. After she discovered the profanity-laden note ex-

changed between E.C. and McKenzie, she again wrote E.C. up, and

he received a day of in-school suspension. All of these punishments

were in line with DCS’s Code of Conduct. True, McKenzie was

written up for this incident along with E.C. But there is no indica-

tion that Mims “[knew] of and disregard[ed]” an excessive risk to

McKenzie’s health and safety by responding the way that she did.

Hernandez, 982 F.3d at 1330. A reasonable jury could not conclude

that Mims’s actions, which included writing E.C. up, sending him

to the office, and assigning him a day of -in-school suspension, were

unreasonable in the light of the known circumstances. Thus, we

cannot say that Mims’s response amounted to an “official deci-

sion . . . not to remedy the [harassment].” Gebser, 524 U.S. at 290.

We conclude that the Adamses have raised no genuine issue of ma-

terial fact that Mims was deliberately indifferent to the instances of

bullying of which she was aware.

Stewart, too, knew about the bullying directed at McKenzie.

Once she was informed that McKenzie was being bullied, Stewart

put in place a safety plan, which allowed McKenzie to leave the

classroom any time she felt threatened by the bullying. After the

safety plan was implemented, Janice noticed no unusual behavior

in McKenzie that would have prompted Janice to follow up with

(11th Cir. 2010) (“Calling a female colleague a ‘bitch’ is firmly rooted in gen-

der. It is humiliating and degrading based on sex.”).

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22-11317 Opinion of the Court 19

Stewart. We acknowledge that there is no indication in the record

that McKenzie used the safety plan or that it was effective in curb-

ing the bullying. Perhaps a more effective response could have

been implemented—but the deliberate indifference standard does

not turn on effectiveness. Stewart’s decision to implement the

safety plan represented a reasonable attempt to rectify the bullying.

Therefore, even if in hindsight something more effective could

have been done, her response to the bullying does not amount to

deliberate indifference. 14

Second, we address the Adamses’ argument that DCS was

deliberately indifferent through its failure to implement an anti-

bullying plan consistent with the Jamari Terrell Williams Act. The

Act was enacted in response to the suicide of Williams, who was

bullied online by students in his class. Ala. Code § 16-28B-4. The

Act requires each public school to “develop plans or programs, in-

cluding, but not limited to, peer mediation teams, in an effort to

encourage students to report and address incidents of bullying, vi-

olence, or threats of violence.” Id. § 16-28B-4(d). Under the Act, at

the beginning of the school year, a school must provide program-

ing to faculty and students on “the issue of bullying and school vi-

olence with faculty and students.” Id. The programming must “in-

clude a discussion of available resources” and “encourage the re-

porting of incidents of bullying.” Id. In addition, each school must

“periodically convene a committee of faculty and students to

14 We find the evidence insufficient to establish a genuine issue of material fact

that any other defendant was aware that McKenzie was being bullied.

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20 Opinion of the Court 22-11317

review and discuss the issue of bullying and make recommenda-

tions to school administrators regarding school climate, safety, and

bullying.” Id. The Act went into effect on June 1, 2018. In response

to the Act, the Alabama State Department of Education dissemi-

nated a model plan to all Alabama public school systems in Decem-

ber 2018. DCS adopted the model plan in February 2019.

Although DCS did not formally adopt a plan compliant with

the Act until about eight months after the Act went into effect, the

record shows that it was normal practice for DCS to wait for and

then adopt model plans disseminated by the State Department of

Education. Further, even before DCS adopted the model plan, it

had in place its own annual Back to Basics training that addressed

the topics of bullying and suicide prevention. There is no evidence

that the training was intentionally or recklessly deficient or that the

decision to wait for the model plan was a reckless decision. A rea-

sonable jury therefore could not conclude that DCS’s decision to

wait to adopt a model policy, especially while having an anti-bully-

ing policy already in place, was clearly unreasonable.

What happened to McKenzie was beyond tragic. The evi-

dence of record does not establish any action or lack of action by

DCS or any of the named individual defendants that amounted to

deliberate indifference, however. So the district court did not err in

granting summary judgment to the defendants on the Adamses’

Title IX claim.

Because we resolve the Adamses’ Title IX claim on the de-

liberate indifference element, we do not reach the other elements.

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22-11317 Opinion of the Court 21

We feel it important to note, however, that we reject the defend-

ants’ assertion that the repeated taunting of a nine-year-old girl, in-

cluding sexualized and racialized comments on her skin tone, hair,

and physical appearance, and name calling such as “n*****,” “black

bitch,” “dumb black bitch,” and “pussy ass bitch” amounts to “at

most, only childish name-calling and teasing that is inevitable

among elementary school students” or “adolescent teasing.” Ap-

pellees’ Br. at 4–5, 7. We have no doubt that such conduct at least

raises a question of fact whether the harassment and bullying

McKenzie faced was severe and pervasive.

2. Title VI and Equal Protection Claims

Next, we consider the Adamses’ Title VI and equal protec-

tion claims. Under Title VI, “[n]o person . . . shall, on the ground

of race, color, or national origin, be excluded from participation in,

be denied the benefits of, or be subjected to discrimination under

any program or activity receiving [f]ederal financial assistance.”

42 U.S.C. § 2000d. The Fourteenth Amendment’s Equal Protection

Clause provides that “[n]o State shall . . . deny to any person within

its jurisdiction the equal protection of the laws.” U.S. Const.

amend. XIV, § 1. We have recognized that Title VI provides no

more protection than the Equal Protection Clause does. Elston v.

Talladega Cnty. Bd. of Educ., 997 F.2d 1394, 1405 n.11 (11th Cir.

1993).

To establish that a defendant is liable under Title VI or the

Equal Protection Clause, a plaintiff must prove discriminatory in-

tent. Burton v. City of Belle Glade, 178 F.3d 1175, 1202 (11th Cir.

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22 Opinion of the Court 22-11317

1999); Elston, 997 F.2d at 1406. Discriminatory intent may be estab-

lished by evidence of a “history of discriminatory official actions.”

Elston, 997 F.2d at 1406. To hold a supervisory official or govern-

ment entity liable, a plaintiff must show that the violation resulted

from a custom or policy put in place by the supervisor or the entity.

See Fundiller v. City of Cooper City, 777 F.2d 1436, 1442–43 (11th Cir.

1985). The discriminatory practice must be so widespread as to put

the supervisor or entity on notice of the need to act. Id. at 1443.

Specific to their Title VI claim, the Adamses argue that DCS

was deliberately indifferent to the race-based harassment that

McKenzie faced. Their argument assumes that Title VI creates a

private cause of action for student-on-student race-based harass-

ment and that a school district can be held liable if it was deliber-

ately indifferent to the harassment. Whether deliberate indiffer-

ence is the standard applicable to a Title VI claim is a question of

first impression in our circuit. Other circuits have held that the de-

liberate indifference standard applicable to Title IX claims also ap-

plies to Title VI claims. Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d

655, 664–71 (2d Cir. 2012) (applying deliberate indifference stand-

ard to Title VI claim); Blunt v. Lower Merion Sch. Dist., 767 F.3d 247,

271–73 (3d Cir. 2014) (holding that the Title IX deliberate indiffer-

ence standard is applicable to Title VI claims); Fennell v. Marion In-

dep. Sch. Dist., 804 F.3d 398, 408 (5th Cir. 2015) (same); Bryant v.

Indep. Sch. Dist. No. I-38 of Garvin Cnty., 334 F.3d 928, 934 (10th Cir.

2003) (same).

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22-11317 Opinion of the Court 23

Today we join these circuits in holding that to prevail on a

Title VI claim for student-on-student race-based harassment, a

plaintiff must prove that the defendants were deliberately indiffer-

ent to the harassment. Because Congress modeled Title IX after

Title VI, our conclusion is straightforward. Fitzgerald v. Barnstable

Sch. Comm., 555 U.S. 246, 258 (2009). The two statutes are parallel,

except that Title IX prohibits race-based discrimination whereas Ti-

tle VI prohibits sex-based discrimination. Gebser, 524 U.S. at 286.

The statutes operate in the same manner—“conditioning an offer

of federal funds on a promise by the recipient not to discriminate.”

Id. As a result, just like a school district engages in intentional dis-

crimination and is liable under Title IX when it is “deliberately in-

different to known acts of student-on-student sexual harassment,”

Davis, 526 U.S. at 646–47, a school district engages in intentional

discrimination and is liable under Title VI when it is deliberately

indifferent to known acts of student-on-student racial harassment.

This conclusion is consistent with Supreme Court decisions

that interpret “Title IX consistently with Title VI.” Barnes v. Gor-

man, 536 U.S. 181, 185 (2002); see Ingram v. Kubik, 30 F.4th 1241, 1258

(11th Cir. 2022). We therefore agree with the Tenth Circuit that

“the [Supreme] Court’s analysis of what constitutes intentional sex-

ual discrimination under Title IX directly informs our analysis of

what constitutes intentional racial discrimination under Title VI.”

Bryant, 334 F.3d at 934.

Notwithstanding the existence of a cause of action, the dis-

trict court properly granted summary judgment to the defendants

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24 Opinion of the Court 22-11317

on the Adamses’ Title VI claim. As we explained when applying the

same standard to their Title IX claim, they failed to submit evidence

that DCS acted with deliberate indifference to any known instances

of bullying directed at McKenzie.

In support of their equal protection claim, the Adamses ar-

gue that DCS, Kallhoff, and Infinger “created a pervasive policy,

custom, and practice of ignoring discriminatory harassment”

through their failure to implement policies required by the Wil-

liams Act and by failing to follow DCS’s own Code of Conduct.

Appellants’ Br. at 16. This claim, too, fails because the record does

not support that the defendants acted even with deliberate indiffer-

ence. It follows, then, that no reasonable jury could conclude the

defendants’ actions amounted to intentional discrimination—

which, in this context, would mean a pervasive practice or custom

of ignoring the bullying directed at McKenzie. Nor is there any in-

dication in the record that bullying or harassment was a wide-

spread problem at DCS or U.S. Jones Elementary School so as to

put the defendants on notice of the need to take action to prevent

or stop it. Thus, we cannot conclude that DCS, Kallhoff, and Infin-

ger acted or failed to act with an intent to discriminate.

3. Substantive Due Process Claims

Lastly, we review the Adamses’ substantive due process

claims under § 1983. Section 1983 provides a remedy against any

person who, acting under color of state law, deprives another of

rights protected by the Constitution. 42 U.S.C. § 1983. The Ad-

amses contend that the defendants deprived McKenzie of rights

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22-11317 Opinion of the Court 25

protected by the Due Process Clause of the Fourteenth Amend-

ment, which provides that “[n]o State shall . . . deprive any person

of life, liberty, or property without due process of law.” U.S. Const.

amend. XIV, § 1. The substantive component of the Due Process

Clause protects individual liberty against certain government ac-

tions regardless of the fairness of the procedures used to implement

them. Carter, 555 F.3d at 981–82. In non-custodial settings, such as

in public schools, conduct by a government actor will rise to the

level of a substantive due process violation only if the act can be

characterized as arbitrary or conscience-shocking in a constitu-

tional sense. Hernandez, 982 F.3d at 1330.

To rise to the “conscience-shocking level, conduct most

likely must be intended to injure in some way unjustifiable by any

government interest.” Carter, 555 F.3d at 982 (internal quotation

marks omitted and alterations adopted). In considering whether

conduct raises to the level of arbitrary or conscience-shocking, de-

liberate indifference, without more, is rarely a basis for substantive

due process liability in cases arising in the school context. Hill,

797 F.3d at 980; see also Hernandez, 982 F.3d at 1330 (expressing

doubt that deliberate indifference can ever be arbitrary or con-

science shocking in a non-custodial setting).

The Adamses argue that DCS, Kallhoff, and Infinger’s

“choice of indifference in regards to the Jamari Terrell Williams Act

was founded on preference rather than reason or thought and was

therefore, arbitrary by definition.” Appellants’ Br. at 19. Even if we

assume that deliberate indifference can rise to the level of arbitrary

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26 Opinion of the Court 22-11317

or conscience-shocking conduct—an issue we do not decide to-

day—the evidence simply does not support a finding that the de-

fendants were deliberately indifferent. Summary judgment there-

fore was due to be granted on the Adamses’ substantive due pro-

cess claims. 15

To sum up, we conclude that a reasonable jury could not

find that DCS acted with deliberate indifference, that it intention-

ally discriminated against McKenzie, or that DCS, Kallhoff, or In-

finger’s actions were arbitrary or conscience-shocking. In turn, the

district court did not err in granting summary judgment to the de-

fendants on the Adamses’ Title IX, Title VI, equal protection, and

substantive due process claims.

B. Alabama Wrongful Death Tort Claims

The Adamses also challenge the district court’s grant of sum-

mary judgment on their Alabama wrongful death claims. They ar-

gue that the district court erred in concluding that Kallhoff and In-

finger are entitled to immunity under Alabama state law. Immun-

ity does not apply, according to the Adamses, because their claims

do not arise out of conduct which “involv[ed] the exercise of judg-

ment and discretion [by Kallhoff and Infinger] in performing their

official duties.” Appellants’ Br. at 25. Instead, the Adamses con-

tinue, Kallhoff and Infinger “did not implement the rules required

by the Act”; thus, they were not “engag[ing] in discretion in the

15 Because the defendants’ conduct was not arbitrary or conscience-shocking,

and thus did not amount to a constitutional violation, we need not address

whether the defendants were entitled to qualified immunity.

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22-11317 Opinion of the Court 27

application of such rules” and were acting beyond their scope of

authority. Id. We reject their argument.

Alabama law affords immunity from suit to state officials.

The state’s Constitution provides that “the State of Alabama shall

never be made a defendant in any court of law or equity.” Ala.

Const. art. I, § 14. The Alabama Supreme Court has extended this

sovereign immunity to a person acting as an agent of a municipal

board of education when the person is performing discretionary

duties or duties that require the exercise of judgment. Carroll ex rel.

Slaught v. Hammett, 744 So. 2d 906, 910 (Ala. 1999) (“[A] person who

acts as an agent of a county board of education shares in the State’s

sovereign immunity if the act complained of was committed while

that person was performing a discretionary act.”).

The Alabama Supreme Court thus has recognized that a

state agent is immune from civil liability when she “formulat[es]

plans [and] policies” and “exercis[es] judgment in . . . educating stu-

dents.” Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000); Ex parte

Nall, 879 So. 2d 541, 544 (Ala. 2003) (“Generally, State agents are

afforded immunity from civil liability when the conduct made the

basis of the claim is based on the exercise of judgment in supervis-

ing and educating students.”). The Court has held that a school ad-

ministrator was entitled to state-agent immunity where she “negli-

gently failed to exercise proper safety measures, to monitor school

equipment, to maintain safety precautions, and to institute safety

measures,” Louviere v. Mobile Cnty. Bd. of Educ., 670 So. 2d 873, 877

(Ala. 1995), noting that school administrators are entitled to

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28 Opinion of the Court 22-11317

immunity when “formulating policies,” Ex parte Trottman, 965 So.

2d 780, 786 (Ala. 2007).

Here, the Adamses argue that Kallhoff and Infinger are not

entitled to immunity because the Williams Act mandated that Ala-

bama public schools implement plans addressing bullying. As a re-

sult, the Adamses contend, Kallhoff and Infinger did not have any

discretion whether to implement such a plan. According to the Ad-

amses, the “Alabama State Legislature removed any professional

discretion by mandating the schools [to] take action.” Appellants’

Br. at 25.

We agree with the district court that Kallhoff and Infinger

are entitled to immunity because the Adamses seek to hold them

liable for conduct that involved the performance of official duties

to supervise and educate students. As the superintendent of DCS,

Kallhoff addressed anti-bullying and suicide prevention with teach-

ers and staff as part of the school’s annual Back to Basics training.

Once the Williams Act went into effect, DCS and Kallhoff decided

to wait until the State Department of Education disseminated a

model plan to the school systems. In the interim, however, DCS

relied on its current anti-bullying training. And Infinger, as

Kallhoff’s subordinate, acted under his direction to carry out the

existing anti-bullying plan, which was within the performance of

her official duties as principal. Central to the Adamses’ claim is that

Kallhoff and Infinger are liable because they decided to rely on their

own anti-bullying training while waiting for the State Department

of Education to promulgate its model plan. But state-agent

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22-11317 Opinion of the Court 29

immunity applies to claims arising out of this type of conduct. See

Ex parte Cranman, 792 So. 2d at 405. And so we agree with the dis-

trict court that Kallhoff and Infinger were entitled to state-agent

immunity from the Adamses’ wrongful death claims.

The Adamses nevertheless argue that Kallhoff and Infinger

should not be entitled to state-agent immunity because an excep-

tion applies. Alabama law recognizes several exceptions to state-

agent immunity. As relevant here, state-agent immunity does not

apply when a school official acts beyond her authority. Id. A state

agent acts beyond her authority when she “fails to discharge duties

pursuant to detailed rules or regulations, such as those stated on a

checklist.” Ex parte Est. of Reynolds, 946 So. 2d 450, 452 (Ala. 2006)

(alteration adopted and internal quotation marks omitted).

The Adamses argue that by using their discretion to classify

instances of bullying, Kallhoff and Infinger acted beyond their au-

thority. To support their argument, the Adamses point to the DCS

Code of Conduct, which sets forth a checklist definition for identi-

fying and disciplining bullying, and argue that the checklist does

not allow for discretion in a school official’s identification of, and

discipline for, bullying. According to the Adamses, when Kallhoff

and Infinger failed to classify E.C.’s aggressive acts toward McKen-

zie as bullying and failed to discipline him in line with the Code of

Conduct, they acted beyond their authority. But the record con-

tains no indication that either Kallhoff or Infinger had any direct

interactions with McKenzie or were a part of the disciplinary pro-

cess for E.C. In absence of such evidence, we cannot conclude that

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30 Opinion of the Court 22-11317

either Kallhoff or Infinger acted beyond their authority. Accord-

ingly, no exception to state-agent immunity applies to Kallhoff’s or

Infinger’s conduct. 16

IV. CONCLUSION

Despite our deepest sympathy for the tragic loss of McKen-

zie Adams, for the reasons we have explained, the district court did

not err in granting summary judgment on the Adamses’ federal and

state claims. We affirm the judgment of the district court.

AFFIRMED.

16 The district court also concluded that Kallhoff and Infinger were entitled to

summary judgment on the state-law tort claims because McKenzie’s suicide

was an intervening cause that made their actions not a proximate cause of any

injury. Because we affirm based on state-agent immunity, we do not address

the district court’s alternative conclusion about proximate causation.