Doe v. Hoover City Schools Board of Education

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JANE DOE, a minor who sues by )

and through her guardians and )

Next Friends, Mary Doe and )

Martha Doe, )

)

Plaintiff, )

v. ) Case No.: 2:19-cv-243-AMM

)

HOOVER CITY BOARD OF )

EDUCATION; KATHY )

MURPHY; QUINCY COLLINS; )

MICHELLE KAISER, )

)

Defendants. )

MEMORANDUM OPINION ON DEFENDANTS’ MOTIONS TO DISMISS

THE THIRD AMENDED COMPLAINT

This matter comes before the court on motions to dismiss by Hoover City

Board of Education (“the Board”) and Kathy Murphy, Quincy Collins, and Michelle

Kaiser (collectively, “the Individual Defendants”). Docs. 47 & 48. For the reasons

below, the motions are GRANTED IN PART and DENIED IN PART. In an order

entered contemporaneously herewith, the court will dismiss Count I against the

Board, dismiss all counts against the Individual Defendants in their official capacity,

and grant Doe’s request for leave to file a corrected complaint.

I. BACKGROUND

A. Allegations In The Third Amended Complaint

In relevant part, viewed in the light most favorable to Doe, the complaint

alleges as follows:

In October of 2017, plaintiff Jane Doe enrolled as a new student at Trace

Crossings Elementary School and was placed in teacher Michelle Kaiser’s first-

grade class. Doc. 46 ¶ 16. Shortly afterward, Ms. Kaiser noticed that Doe didn’t want

to go to the restroom and was generally disengaged in class. Id. ¶ 29. Ms. Kaiser

informed Doe’s parents. Id. Months passed. In January 2018, Principal Quincy

Collins learned that several of Doe’s classmates (whom the Third Amended

Complaint calls “the Harassing Girls”) had been sexually abusing another classmate,

a girl identified only by the pseudonym “Jane Smith,” on the playground and in the

girls’ restroom. Id. ¶¶ 20-23, 36. A parent of one of the Harassing Girls worked as a

teacher’s aide at the school. Id. ¶ 43. To discipline the Harassing Girls, Principal

Collins made them run laps. Id. ¶ 24. Jane Smith’s parents withdrew her from school

in late January. Id. ¶ 25.

In the first weeks of February of 2018, Jane Doe’s parents noticed her

behavior deteriorating. Id. ¶ 27. “She became recalcitrant and intractable; a

significant shift” from her ordinary attitude. Id. She fought her parents about going

to school. Id. She told them that Ms. Kaiser was making her play with a group of

students she didn’t want to play with. Id. ¶ 28. One of Doe’s parents quit her job in

order to spend more time with Doe. Id. ¶ 27.

On February 26, Doe’s parents sent a letter to Principal Collins expressing

concerns about Ms. Kaiser. Id. ¶ 30. The next day, Doe’s parents learned that Doe

had been assaulted at school. Id. ¶ 31.

“On a number of occasions during the . . . school year,” the Harassing Girls

had approached Doe in the restroom and on the playground and took turns “holding

her while they pulled her pants and underwear down before digitally manipulating

her vagina.” Id. ¶¶ 18-19, 78. They also “took her into the girls’ restroom and insisted

that she wear a toddler diaper (a.k.a. a ‘pullup’) instead of underwear.” Id. ¶ 19. Jane

Smith initially took part in this abuse, but in January, when Smith “told the other

Harassing Girls that she would no longer participate in [Doe’s] sexual violation,”

the Harassing Girls “began treating Jane Smith just as they had Plaintiff Doe.” Id.

¶¶ 20-21. After Smith withdrew from school in late January, the Harassing Girls

continued to sexually abuse Doe. Id. ¶¶ 23-26.

After learning on February 27th that Doe had been assaulted, Doe’s parents

kept her out of school for a week. Id. ¶¶ 31-32. During that week, her parents met

with Principal Collins to discuss her safety and asked that he allow them to be present

during Collins’s proposed meeting with Kathy Murphy, the Superintendent of

Hoover City Schools. Id. ¶¶ 33-34. On March 5, Principal Collins met with

Superintendent Murphy to discuss how the school would respond to the assault, but

Doe’s parents were not included in the meeting. Id. ¶¶ 34-35. During the meeting,

Collins, Murphy, and an assistant superintendent discussed a plan “that would

involve placing Jane Doe in another class, counseling for Jane Doe at school,

additional toileting opportunities for Jane Doe, an aide to supervise Jane Doe at

lunch, recess, assemblies and field trips, special education on emotional and social

skills, and removal of Kaiser.” Id. ¶ 35. Other than the first and last aspects of that

plan—Ms. Kaiser was placed on two-week administrative leave (the complaint

specifies that one of those weeks fell during spring break, id. ¶ 39, but it is unclear

when the other week fell); and Doe was not placed in different class, id. ¶ 36—the

complaint is silent as to which aspects were carried out.

On March 7, a Wednesday, Doe’s parents sent her back to school. Id. ¶ 32.

She had to return to class with the Harassing Girls. Id. ¶ 36. The following Friday,

Principal Collins told one of Doe’s parents that the investigation was complete. Id.

¶ 37. The following Monday, after learning that Ms. Kaiser had returned to teach,

that parent “requested a written update of the investigation including any findings

and conclusions.” Id. ¶ 38. The next day, Doe’s parents were updated. Id. ¶ 39.

A week later, on the Friday before spring break, a classmate cut Jane Doe’s

hair. Id. ¶ 40. Doe’s parent told Principal Collins about the incident on the Monday

after spring break, but the complaint is silent as to whether he responded. Id. That

same day, Doe was pushed on the playground, and Doe’s parent told Principal

Collins about this incident as well. Id. ¶ 41. The next day, Principal Collins met with

the teacher who had supervised the playground that day, the student who pushed

Jane Doe, a student who witnessed the incident, and Jane Doe. Id. ¶ 42.

Twice during the following month, one of Doe’s parents requested “a written

copy of the safety and supervision plan for Jane Doe,” but the complaint is silent as

to whether those requests were granted. Id. ¶¶ 44, 46.

Toward the end of May, a student bit Jane Doe, bruising her face and lip. Id.

¶ 47. Again, one of Doe’s parents told Principal Collins about this incident, but the

complaint is silent as to whether he responded. Id. ¶ 47. A week later, Doe’s parents

withdrew her from Trace Crossings Elementary and enrolled her in a homeschooling

ministry. Id. ¶ 48. She continues to suffer from the trauma of that schoolyear. Id.

¶ 90.

B. Procedural History

In February of 2019, Doe, through her parents, filed a complaint in this court

against several defendants. Doc. 1. Over the next several months, Doe amended her

complaint three times, Docs. 12, 37, & 46, and each time the defendants filed

motions to dismiss, Docs. 18, 19, 38, 40, 47, & 48. The court did not rule on the

substance of the prior motions to dismiss, instead allowing Doe to amend (and

amend again) her pleadings. The operative complaint is the Third Amended

Complaint, Doc. 46, which asserts five counts. Counts I, II, and III assert state-law

claims sounding in negligence and recklessness. Count IV asserts a claim under

20 U.S.C. § 1681 (“Title IX”) against the Board, alleging that the Board “through its

employee[s] Collins and Kaiser, had actual and/or constructive knowledge of the

assaults, sexual abuse, harassment and misconduct by other students toward

Plaintiff,” and that it “acted unreasonably” and “with deliberate indifference” in

response. Doc. 46 ¶¶ 80, 84. Count V asserts claims against all defendants under

42 U.S.C. § 1983 for violations of Doe’s right to substantive due process and equal

protection under the Fourteenth Amendment.

The Board and the Individual Defendants have again moved to dismiss. Docs.

47 & 48.1

II. STANDARD OF REVIEW

A complaint must provide “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint need not

1 The Board’s motion violates Exhibit B of the Initial Order, Doc. 17, by failing to include the

required certification. Doc. 48. Additionally, the Board’s motion purports to incorporate by

reference the Board’s two prior motions to dismiss, Docs. 40 & 19. Doc. 48 at 1 n.2; Doc. 40 at 1

n.2. This incorporation would bring the motion’s page total to twenty-five, the maximum allowed,

but all three motions are replete with block quotes and long footnotes, fifty footnotes in all. As just

one example, footnote 3 of the Board’s motion runs for nearly an entire page. See Doc. 48 at 2 n.3.

Combined, the motions “circumvent page limitations by manipulating . . . line spacing, or other

similar end runs,” a practice prohibited by the Initial Order. Doc. 17 at 26 n.5. Particularly in light

of two reminders from the court to brief the motions to dismiss in accordance with the Initial Order,

Docs. 20 & 42, these violations are unexpected. Additionally, the Board’s two prior motions to

dismiss were terminated by the court because they were not directed at the operative complaint.

Docs. 36 & 45. Nevertheless, the court exercises its discretion to consider the Board’s prior

arguments as though their incorporation were effective, despite these defects.

make “detailed factual allegations”; its purpose is only to “‘give the defendant fair

notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555-56 (2007) (quoting Conley v. Gibson, 355 U.S. 41,

47 (1957)). To survive a motion to dismiss, the facts alleged in a complaint must do

more than “speculat[e]” or raise “suspicion” about a claim for relief. Id. (citation

omitted). To test the complaint, the court takes all factual allegations as true, discards

any “conclusory allegations,” McCullough v. Finley, 907 F.3d 1324, 1333 (11th Cir.

2018), and “draw[s] all reasonable inferences in the plaintiff’s favor,” Randall v.

Scott, 610 F.3d 701, 705 (11th Cir. 2010). These facts and inferences must amount

to a “plausible” claim for relief, a standard that “requires the reviewing court to draw

on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009).

III. ANALYSIS

A. Doe’s Title IX Claim

Count IV alleges that the Board violated Title IX when it acted with deliberate

indifference to repeated sexual assaults and harassment of Doe by her classmates.

Doc. 46 ¶¶ 75-90. Additionally, Count IV alleges that the Board had the authority

and opportunity to initiate corrective action to stop such unlawful conduct at the

school before the Board learned of the assault and harassment of Jane Doe, based on

what the Board knew about the assault of Jane Smith, and failed to do so. Id.

¶¶ 81-83. Count IV further alleges that the Board had the authority and opportunity

to initiate corrective action to stop such unlawful conduct at the school after the

Board learned of the assault of Jane Doe, and failed to do so. Id. ¶¶ 83-84.

Title IX prohibits discrimination on the basis of sex and provides a vehicle for

individuals to recover damages when such discrimination occurs. Franklin v.

Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 76 (1992). It provides, in relevant part: “No

person in the United States shall, on the basis of sex, be excluded from participation

in, be denied the benefits of, or be subjected to discrimination under any education

program or activity receiving Federal financial assistance . . . .” 20 U.S.C. § 1681.

When a school that is a recipient of federal funding exhibits “deliberate

indifference” to “known acts” of student-on-student sexual harassment, it may “in

certain limited circumstances” be “subject[ing]” a person to discrimination on the

basis of sex and making itself liable for damages under Title IX. Davis v. Monroe

Cnty. Bd. of Educ., 526 U.S. 629, 643 (1999). In Davis, the United States Supreme

Court held that a complaint stated a Title IX claim based on a school board’s

deliberate indifference to a fifth-grader’s known sexual harassment of a classmate.

Id. at 632-33, 653-54.

A claim for recovery under Title IX for student-on-student harassment

includes four elements:

First, the defendant must be a Title IX funding recipient. . . . Second,

an “appropriate person” must have actual knowledge of the

discrimination or harassment the plaintiff alleges occurred. Gebser v.

Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). . . . Third, a

funding recipient is liable for student-on-student harassment only if

“the funding recipient acts with deliberate indifference to known acts

of harassment in its programs or activities.” Davis, 526 U.S. at 633. . . .

Fourth, the discrimination [or harassment] must be “so severe,

pervasive, and objectively offensive that it effectively bars the victim’s

access to an educational opportunity or benefit.” Davis, 526 U.S. at 633.

Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1293 (11th Cir. 2007).

1. Federal Funding Recipient

The complaint alleges (and the Board does not dispute) that the Board is a

Title IX funding recipient. Doc. 46 ¶ 4.

2. Actual Knowledge

The actual-knowledge element of a Title IX claim requires that “an

‘appropriate person’ must have actual knowledge of the discrimination or

harassment the plaintiff alleges occurred.” Williams, 477 F.3d at 1293. “An

appropriate person is, at a minimum, an official of the recipient entity with authority

to take corrective action to end the discrimination.” Id. (internal alterations and

quotation marks omitted).

The Board has not argued that either Principal Collins or Ms. Kaiser do not

qualify as an “appropriate person” in this case. Accordingly, the dispositive question

as to this element is whether the complaint sufficiently alleges that Principal Collins

or Ms. Kaiser had “actual knowledge of the discrimination or harassment the

plaintiff alleges occurred.” Id.

The Supreme Court has phrased this requirement in three ways: as a

requirement of “actual knowledge by a school official with authority to end the

harassment,” Gebser, 524 U.S. at 283; “actual knowledge of the teacher’s conduct,”

id. at 289 (in Gebser, the teacher was the harasser); or “actual knowledge of

discrimination in the recipient’s programs,” id. at 290. The requirement of actual

knowledge ensures “that recipients [can] be liable in damages only where their own

deliberate indifference effectively ‘cause[d]’ the discrimination.” Davis, 526 U.S. at

642-43 (citing Gebser, 524 U.S. at 291).

The Board concedes that Principal Collins actually knew that the Harassing

Girls had sexually assaulted Jane Smith. Doc. 48 at 3. What the Board did not know,

it argues, was that the Harassing Girls’ conduct involved a second victim, Jane Doe.

Id. at 3-4. The Board further argues that “Principal Collins was not made aware of

any alleged misconduct directed toward Jane Doe until February 28, 2018.” Id.

The Board’s argument that its actual knowledge of the Harassing Girls’ abuse

of Jane Smith cannot satisfy the actual-knowledge requirement for Jane Doe’s

lawsuit is wrong. The Board focuses on actual knowledge of the identity of the

harassers’ specific victim, but under controlling precedent the proper focus is on

actual knowledge of the harassers’ conduct. Most notably, in Williams, the Eleventh

Circuit held that a university’s actual knowledge that a student had sexually harassed

people other than the plaintiff fulfilled the actual-knowledge element of the

plaintiff’s Title IX claim: the complaint alleged that officials at the University of

Georgia (“UGA”) knew the student’s history of sexual harassment at his previous

schools and nevertheless recruited him to be a student-athlete at UGA, where he

conspired with others to sexually assault the plaintiff. Williams, 477 F.3d at 1292,

1296 (concluding that the school officials’ “decision to recruit [a student with a

known history of harassment] and admit him through UGA’s special admission

process was a form of discrimination that [the plaintiff] suffered”). Here, the

complaint alleges that (1) Principal Collins and Ms. Kaiser learned in January of

2018 that the Harassing Girls had sexually assaulted Jane Smith, and (2) the Board

could have taken corrective action to prevent further assault of Doe, but acted with

deliberate indifference instead. Doc. 46 ¶¶ 23-26, 77, 82-84. Under Williams, this

allegation sufficiently pleads the actual-knowledge element of Doe’s Title IX claim.

Other precedents confirm that the analysis pivots on knowledge of the

harassment, not knowledge of the harassment’s particular victim. First, even in the

cases where the allegations of actual knowledge were insufficient, the analysis

focused on knowledge of the harassment, not knowledge of the harassment’s

particular victim. See Gebser, 524 U.S. at 291 (the information known to the school

“consisted of a complaint from parents of other students charging only that [the

teacher] had made inappropriate comments during class, which was plainly

insufficient to alert the principal to the possibility that [the teacher] was involved in

a sexual relationship with a student”); Davis v. DeKalb Cnty. Sch. Dist., 233 F.3d

1367, 1373 (11th Cir. 2000) (concluding that the actual-knowledge requirement was

not satisfied because a “complaint [by a different student] of an incidental touching

during an athletic event and a perceived imminent touching could not, as a matter of

law, apprise Defendants to the possibility that [the teacher] was sexually molesting

Plaintiffs”). Second, what the Davis Court called the “most obvious example of

student-on-student sexual harassment capable of triggering a damages claim”—a

group of male students barring a group of female students from using the computer

lab—does not square with the Board’s victim-specific view of actual knowledge.

Davis, 526 U.S. at 650-51. A claim based on such conduct would not turn on the

school’s actual knowledge of the identity of each female student shut out of the

computer lab; it would turn on the school’s actual knowledge of male students’

improper conduct toward female students. Id. Under these precedents, Jane Doe’s

allegation that the Board actually knew that the Harassing Girls had sexually

assaulted Jane Smith, and remained deliberately indifferent while the Harassing

Girls continued to sexually assault Jane Doe, adequately pleads the actual-

knowledge element of a Title IX claim.

Separately, the Board’s victim-specific argument about actual knowledge

does not respond to Jane Doe’s other allegation under Title IX—namely, that the

Board discriminated against Jane Doe even after Doe’s parents learned that she had

been assaulted and met with Principal Collins to discuss her safety. See Doc. 46

¶¶ 31, 33, 83, 84. The Board asserts that the incidents that followed the sexual assault

of Doe are “unrelated and isolated,” and therefore cannot support Title IX liability.

Doc. 48 ¶ 6. But Doe’s complaint does not allege that the incidents were “unrelated

and isolated,” or use any similar language, or otherwise require an inference to that

effect. Because the court is required to draw all reasonable inferences in favor of

Doe—not against her—the court rejects this argument by the Board.

3. Deliberate Indifference

The third element of a Title IX claim is that “‘the funding recipient act[ed]

with deliberate indifference to known acts of harassment in its programs or

activities.’” Williams, 477 F.3d at 1293 (quoting Davis, 526 U.S. at 633). Like the

requirement of actual knowledge, the element of deliberate indifference ensures that

a “recipient of federal funds may be liable in damages under Title IX only for its

own misconduct,” not that of a third party. Davis, 526 U.S. at 640. “Deliberate

indifference makes sense as a theory of direct liability under Title IX only where the

funding recipient has some control over the alleged harassment.” Id. at 644. Thus,

liability for damages is limited “to circumstances wherein the recipient exercises

substantial control over both the harasser and the context in which the known

harassment occurs.” Id. at 645.

Where “the misconduct occurs during school hours and on school grounds[,]

. . . the misconduct is taking place ‘under’ an ‘operation’ of the funding recipient.”

Id. at 646 (quoting 20 U.S.C. §§ 1681(a), 1687 (defining “program or activity” in

Title IX)). A funding recipient’s “control over the harasser and the environment in

which the harassment occurs,” id. at 644, is all the more salient where the harassing

students are in grade school as opposed to high school or college, id. at 649. A

“funding recipient[] [may be] deemed ‘deliberately indifferent’ to acts of student-

on-student harassment only where the recipient’s response to the harassment or lack

thereof is clearly unreasonable in light of the known circumstances.” Id. at 648.

Davis and Williams govern the analysis of both control and reasonableness.

In Davis, the complaint alleged that throughout a six-month period, a fifth-grade

student engaged in numerous instances of sexual harassment—from lewd remarks,

to attempted groping, to the final incident, in which he rubbed his body against the

plaintiff’s in the hallway. 526 U.S. at 633-635. The plaintiff alleged that her

classmate was never disciplined, and “only after more than three months of reported

harassment was she even permitted to change her classroom seat so that she was no

longer seated next to” the classmate. Id. at 635. The Court concluded that the

school’s alleged response could amount to deliberate indifference. Id. at 649.

In Williams, the Eleventh Circuit held that the complaint sufficiently pleaded

deliberate indifference when it alleged that UGA placed a student with a known

history of harassment “in a student dormitory and fail[ed] to supervise him in any

way . . . [which] substantially increased the risk faced by female students at UGA.”

477 F.3d at 1296. Separately, the court concluded that the complaint sufficiently

pleaded deliberate indifference when it alleged that UGA waited eight months after

the alleged rape (while a criminal case related to the rape was pending) to proceed

with its own disciplinary measures, thereby allowing accused rapists to continue

living in student housing and contributing to the plaintiff’s decision that she wasn’t

safe returning to school. Id. at 1296-97.

Under Davis and Williams, Doe’s complaint alleges facts sufficient to state a

plausible claim that the Board acted with deliberate indifference in response to

known acts of sexual harassment and thus subjected her to discrimination. The court

looks first to the control the Board had over the Harassing Girls and the environment

in which they sexually abused Doe. The Board allegedly had a high degree of control

over the Harassing Girls (who were first-graders) and their movements throughout

the school day. See Doc. 46 ¶¶ 12, 82-83. Indeed, the complaint alleges that the

school controlled both when and how first-graders could use the restroom: school

rules prohibited multiple children from going to the restroom at the same time

without adult supervision. Id. ¶ 49.

Next, the court considers the allegation that the disciplinary measures the

Board took (1) after Principal Collins learned that the Harassing Girls had sexually

abused Jane Smith, and (2) after he learned that the Harassing Girls had sexually

abused Jane Doe, were clearly unreasonable in light of the known circumstances.

As to (1), despite Principal Collins’s considerable “control over the harassers

and the environment in which the harassment occur[ed],” Davis, 526 U.S. at 644,

the complaint alleges that Principal Collins responded to the sexual abuse of Jane

Smith by making the Harassing Girls run laps, Doc. 46 ¶ 24.

Measured against Davis, this allegation sufficiently pleads deliberate

indifference. In Davis, the Court concluded that the complaint suggested “that

petitioner may be able to show . . . deliberate indifference on the part of the Board,

which made no effort whatsoever either to investigate or to put an end to the

harassment.” 526 U.S. at 654. There, the board merely moved the plaintiff’s seating

assignment away from her harasser, and only after three months of complaints. Id.

at 635. Likewise, making the Harassing Girls run laps does nothing either to

investigate or to put an end to their harassment of their classmates. Indeed, the clear

unreasonableness of Principal Collins’s response could be reasonably inferred from

the allegation that after he made the Harassing Girls run laps, their sexually abusive

conduct “continued unabated.” See Doc. 46 ¶ 26.

When the court measures Doe’s allegations against the allegations in

Williams, the result is the same. There, the Eleventh Circuit held that the allegations

of deliberate indifference were sufficient because the complaint alleged that UGA

failed to supervise a student-athlete living in campus housing with a known history

of sexual assault. Williams, 477 F.3d at 1296. On that reasoning, once the Board

became aware that the Harassing Girls had sexually abused Jane Smith, its alleged

failure adequately to supervise them when they used the restroom and playground,

thereby creating opportunities for them to continue sexually assaulting and harassing

Jane Doe, could constitute deliberate indifference. Under Davis and Williams, then,

the allegations about the Board’s conduct in late January and February 2018

sufficiently plead the deliberate-indifference element of Doe’s Title IX claim.

Additionally, the allegations about (2), the disciplinary measures the Board

took after learning that the Harassing Girls abused Doe—particularly the Board’s

decision not to remove the Harassing Girls from the class they shared with Doe—

are sufficient to plead a separate instance of deliberate indifference. Doe alleges that

when she returned to school after her parents kept her home for a week and met with

Principal Collins regarding her assault, the Harassing Girls were still in her class.

Doc. 46 ¶¶ 32-33, 36. She also alleges that their teacher, Ms. Kaiser, was suspended

for two weeks (one of which was spring break). Id. ¶ 39. Doe also alleges that the

school’s deliberate indifference allowed the harassment to continue because in the

three months after the school learned that she had been sexually abused by her

classmates, her hair was cut, she was pushed, and she was bitten on the lip and

bruised. Id. ¶¶ 40-41, 47.

The Board’s motion to dismiss provides no controlling precedent—or even

reasoned analysis—that suggests that these allegations of deliberate indifference,

viewed in the light most favorable to Doe, are insufficient to plead that the Board’s

actions “cause[d] [her] to undergo harassment or ma[de] [her] liable or vulnerable

to it.” Davis, 526 U.S. at 645 (internal quotation marks omitted).

Rather, in passing and in a footnote, the Board cites the portion of Davis

explaining that Title IX does not require a school to take whatever measures a

disgruntled student demands, but to “respond to known peer harassment in a manner

that is not clearly unreasonable,” Davis, 526 U.S. at 648-49. See Doc. 19 at 4 n.8.

The Board asserts that Title IX does not allow Doe to demand that the Harassing

Girls’ conduct be “remed[ied],” and emphasizes that Principal Collins agreed to

meet with Doe’s parents, “considered and/or developed” a safety plan for Doe in

March, and placed Ms. Kaiser on leave for two weeks. Id. at 3-4. But as explained

above, Davis does not support the Board’s motion; it requires the court to hold that

Doe’s complaint sufficiently pleads deliberate indifference. See supra at pp. 14-17.

Finally, the Board argues that Doe’s complaint does not state a claim for relief

because it is “conspicuously devoid” of an allegation that Doe was molested after

her sexual abuse “was reported to school authorities.” Doc. 48 at 4. But the Board

cites no precedent requiring a plaintiff asserting a Title IX claim to allege that

students with a known history of harassment sexually molested her again after the

school learned that she had been one of their victims. Williams counsels against such

a requirement. There, the court held that UGA’s alleged response to a rape incident

reflected “deliberate indifference again” to known acts of harassment (the first time

UGA acted with deliberate indifference was before the plaintiff was raped, when it

allegedly placed a student with a known history of harassment in campus housing

and failed to supervise him); the court did not require the plaintiff to allege that she

was raped again after the rape incident was reported to UGA. See Williams, 477 F.3d

at 1296.

4. Harassment Effectively Denying A Victim’s Equal Access To

Education

To plead the final element of a Title IX claim in the context of “peer

harassment,” a plaintiff must allege that the harassing student’s “behavior [was]

serious enough to have the systemic effect of denying the victim equal access to an

educational program or activity.” Davis, 526 U.S. at 652. This requirement

“reconcile[s] the general principle that Title IX prohibits official indifference to

known peer sexual harassment with the practical realities of responding to student

behavior.” Id. at 653. The focus in the fourth element is on the severity of the

harassing student’s behavior and the effect it had on the plaintiff. See id. at 650-51.

“[S]imple acts of teasing and name-calling” do not “rise[] to the level of actionable

‘harassment.’” Id. at 651-52.

Here again, Davis and Williams govern the analysis. In Davis, the plaintiff did

not allege that she withdrew from school because of the harassment. But the Court

concluded that the plaintiff had sufficiently pleaded that the sexual “misconduct was

severe, pervasive, and objectively offensive” because she alleged she “was the

victim of repeated acts of sexual harassment by [her classmate] over a 5-month

period,” even physical harassment, and “there were multiple victims who were

sufficiently disturbed by [the classmate’s] misconduct to seek an audience with the

school principal.” Davis, 526 U.S. at 653-54. The plaintiff’s grades allegedly

declined, id. at 652, and the Court described that allegation as suggesting that the

harassment had “a concrete, negative effect on her . . . ability to receive an

education,” id. at 654.

In Williams, the court concluded that the complaint sufficiently pleaded

actionable harassment because, although the sexual abuse occurred over a period of

hours, not months, the alleged rape incident “involved a ringleader who lured the

victim to his territory and then conspired with two friends to commit two separate

acts of sexual assault.” 477 F.3d at 1298. The rape incident, “together with the

discrimination that occurred before and after” the rape—UGA’s recruitment, failure

to supervise, and inadequate discipline of the rapists, which caused the plaintiff to

withdraw from the university—sufficiently pleaded “that the alleged discrimination

effectively barred [a college student’s] access to an educational opportunity or

benefit, namely pursuing an education at UGA.” Id. (internal quotation marks

omitted).

Measured against these benchmarks, Doe’s complaint sufficiently pleads that

the abuse and harassment she suffered was “serious enough to have the systemic

effect of denying [her] equal access to an educational program or activity.” Davis,

526 U.S. at 652. Viewed in the light most favorable to Doe, the complaint alleges

that the sexual abuse began as early as October or November 2017, shortly after Doe

joined Ms. Kaiser’s class, when Ms. Kaiser noticed that Doe did not want to go to

the restroom and was disengaged during class. Doc. 46 ¶ 29. Over several months,

Doe and Smith allegedly were victims of repeated acts of physical sexual abuse by

the Harassing Girls. Id. ¶¶ 18-22. Smith told her parents, who sought an audience

with the school principal. Id. ¶ 23. The complaint alleges that after the school

responded by making the Harassing Girls run laps, Smith’s parents withdrew her

from school, and the Harassing Girls continued to abuse Doe. Id. ¶¶ 24-26. Doe

missed a week of school, and her behavior deteriorated so badly that her parent quit

her job. Id. ¶¶ 27, 32. In addition to the series of sexual abuses, the harassment

allegedly continued when Doe returned to school after being out for a week. Id.

¶¶ 40-42, 47. After the school had allegedly failed to implement a safety plan that

could prevent Doe from being abused and harassed, on June 1, 2018, Doe’s parents

withdrew her from school. Id. ¶ 48. Doe’s allegation—as a first-grader—is that after

nearly a full year of sexual abuse and related harassment, which the school was

aware of and did not effectively discipline, she withdrew from public school. Under

Davis and Williams, this alleges actionable harassment.

The Board makes three arguments about this element of Doe’s Title IX claim,

and the court considers each in turn. First, the Board suggests that what it calls the

“vaginal touching incident[s]” are properly contextualized as instances of young

students “still learning how to interact appropriately with their peers.” Doc. 19 at 4

& n.6 (quoting Davis, 526 U.S. at 651). The Board’s argument attempts to downplay

the alleged sexual abuse of Doe, equating it with the “insults, banter, teasing,

shoving, pushing, and gender-specific conduct that is upsetting to the students

subjected to it,” but ultimately “understandable” rather than actionable

“harassment.” Doc. 40 at 2-3 (quoting Davis, 526 U.S. at 651-52). But the

sufficiency of Doe’s complaint rises and falls on the substance of her allegations,

not the Board’s paraphrasing of them. Doe’s allegation is that the Harassing Girls

repeatedly “t[ook] turns standing guard” and “holding [Doe] while they pulled her

pants and underwear down before digitally manipulating her vagina.” Doc. 46 ¶¶ 18-

19, 78. Serial gang molestation is by any measure sexual harassment, not something

short of it, and fundamentally unlike the “simple acts of teasing and name-calling

among school children” that are not actionable under Davis. 526 U.S. at 652.

Second, the Board suggests that the alleged sexual abuse was not “gender-

based” because “the other students involved in the alleged vaginal touching activity

were a small group of Jane Doe’s female first grade classmates.” Doc. 19 at 2 & n.4.

But under controlling precedent decided more than two decades ago, the same-sex

nature of the molestation does not make it any less actionable. See Oncale v.

Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).

Third, the Board asserts that the alleged hair-cutting, shoving, and lip-biting

are not relevant to Doe’s Title IX claim because they are not “gender related.”

Doc. 48 at 4-5. This argument ignores the substance of Doe’s claim. Doe’s claim is

not that she is entitled to relief under Title IX solely because of hair-cutting, shoving,

and lip-biting. It’s that she is entitled to relief under Title IX because after the

Harassing Girls repeatedly sexually abused her and another student, and after the

Board learned of this abuse, and after the Board responded with deliberate

indifference, she continued to be a target for harassment, which ultimately deprived

her of any meaningful, let alone equal, opportunity to learn at Trace Crossings

Elementary. Under Davis and Williams, this allegation is sufficient to state a claim.

B. Section 1983 Claims

Although the caption of Count V reads “42 U.S.C. § 1983 [Violation of 14th

Amendment, Due Process, Equal Protection, 42 U.S.C § 1983] As to Defendants

School Board, Murphy, Collins and Kaiser,” Doc. 46 at 19 (brackets and emphasis

in original), that count alleges in substance only that “Defendants School Board,

Murphy and Collins” violated Doe’s “Fourteenth Amendment Equal Protection

rights,” id. ¶ 94. Nevertheless, the parties have treated Count V as it was captioned—

namely, as including a claim for violation of both Doe’s equal protection rights and

her substantive due process rights. See Doc. 40 at 7 & 4 n.7; Doc. 47 at 5. Because

the factual allegations applicable to both a due process and an equal protection claim

are present in Doe’s complaint, and because the parties construed Count V of her

complaint to raise both a due process claim and an equal protection claim, the court

will construe Count V to raise both claims. To eliminate any doubt, Doe may add a

reference to the Due Process Clause in paragraph 94 when she corrects her complaint

to add Ms. Kaiser’s name to the paragraphs in Count V, as discussed below. See

Busby v. City of Orlando, 931 F.2d 764, 771 n.4 (11th Cir. 1991).

1. The Section 1983 Claim Against The Board

“Section 1983 allows persons to sue individuals or municipalities acting under

the color of state law for violations of federal law.” Hill v. Cundiff, 797 F.3d 948,

976 (11th Cir. 2015). Doe’s Section 1983 claim against the Board is that the Board

violated her rights under the Fourteenth Amendment when it failed to protect her

from sexual assault and harassment at school. Doc. 46 ¶ 94.

The Board’s motion to dismiss Doe’s Third Amended Complaint treats Doe’s

claim under 42 U.S.C. § 1983 as identical to her claim under Title IX. See Doc. 48

at 5. But as the Eleventh Circuit has explained in a case familiar to all counsel in this

case, “Title IX and [Section] 1983 are different,” and a court’s “resolution of [a

plaintiff’s] Title IX suit does not dictate the result of [the court’s] [Section] 1983

analysis.” Hill, 797 F.3d at 976. Accordingly, this court analyzes Doe’s Section 1983

claim separate and apart from her Title IX claim.

A municipality or municipal entity such as the Board “may not be held liable

for constitutional deprivations on the theory of respondeat superior.” Id. at 977.

Liability for constitutional torts attaches to a municipality only if “such

constitutional torts result from an official government policy, the actions of an

official fairly deemed to represent government policy, or a custom or practice so

pervasive and well-settled that it assumes the force of law.” Id. (internal quotation

marks omitted). A complaint must include sufficient factual allegations to suggest

“that the municipal action was taken with the requisite degree of culpability” and to

suggest “a direct causal link between the municipal action and the deprivation of

federal rights.” Id. (internal quotation marks omitted). This requires the court to

“carefully test the link between the policymaker’s inadequate decision and the

particular injury alleged.” Id. (internal quotation marks omitted).

In an earlier motion, the Board argued that the Second Amended Complaint

failed to “allege or identify a municipal policy or custom as the moving force behind

the alleged harassment” of Doe. Doc. 40 at 4-5. But that’s not required. As Hill

explained, a municipality may be held liable for “the actions of an official fairly

deemed to represent government policy.” 797 F.3d at 977 (quoting Denno v. Sch.

Bd. of Volusia Cnty., Fla., 218 F.3d 1267, 1276 (11th Cir. 2000)). Doe’s Section

1983 claim against the Board is that the Board violated her rights under the

Fourteenth Amendment when Superintendent Murphy and Principal Collins failed

to protect her from sexual assault and harassment by students at school. Doc. 46

¶ 94. The complaint alleges that Principal Collins was “the highest-ranking school

official present at Trace Crossings Elementary.” Id. ¶ 52. Depending on the

development of the factual record, Doe may be able to establish that the evidence as

to her allegations against Superintendent Murphy and/or Principal Collins satisfies

the legal requirements for municipal liability. Accordingly, the Board’s motion to

dismiss the Section 1983 claim against it is denied.

2. The Section 1983 Claim Against The Individual Defendants

Doe also has pleaded Section 1983 claims against Superintendent Murphy,

Principal Collins, and Ms. Kaiser. Doe asserts that her rights under the Fourteenth

Amendment were violated when the Individual Defendants failed to protect her from

sexual assault and harassment by students at school. Doc. 46 ¶ 94. Doe alleges that

Ms. Kaiser “exhibited deliberate indifference to her official duties as an educator . . .

when she disregarded the risk of harm that would result from her failure to follow

the rule prohibiting multiple children from using the restroom at a time.” Id. ¶ 49.

Doe alleges that Superintendent Murphy “had actual notice of the student-on-student

assault involving Plaintiff and was deliberately indifferent to the need to protect

Plaintiff . . . [and] refused to meet with Jane Doe’s parents after she learned of the

multiple assaults or assist in any way with providing a safety plan for Jane Doe.” Id.

¶ 50. Doe alleges that Principal Collins “had actual notice of the student-on-student

assault involving Plaintiff and was deliberately indifferent to the need to protect

Plaintiff from the risk of assault.” Id. ¶ 52.

a. Ms. Kaiser

Ms. Kaiser asserts that there is no federal claim pleaded against her because,

although her name appears in the caption of Count V, her name is missing from the

paragraphs in that Count. Doc. 47 at 8. Doe contends that this was an inadvertent

omission and that numerous factual allegations in the complaint expressly refer to

Ms. Kaiser and make clear the factual basis for Doe’s claims against her in this case.

Doc. 51 at 13 n.2.

The purpose of a complaint is “to ‘give the defendant fair notice of what the

[plaintiff’s] claim is and the grounds upon which it rests.’” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957)); accord Busby, 931 F.2d at 770 n.4. Because the caption of Count V and the

numerous factual allegations that refer to Ms. Kaiser make clear that Doe is bringing

a Section 1983 claim against Ms. Kaiser and state the grounds upon which that claim

rests, see Doc. 46 ¶¶ 28, 29, 49, the court declines to find that Doe’s inadvertent

exclusion of Ms. Kaiser from the list of names in paragraphs 92-96 of the complaint

means that Doe has not asserted a Section 1983 claim against Ms. Kaiser.

The Eleventh Circuit case that Kaiser suggests would support such a finding

is inapposite. The issue in Lundgren v. McDaniel, 814 F.2d 600 (11th Cir. 1987),

was whether the caption of a complaint conclusively determined the capacity

(individual or official) in which a party was sued; Lundgren does not address

whether the caption of a count conclusively determines the defendants against which

claims in that count are brought. See id. at 604 n.2.

For the avoidance of doubt, the court grants Doe leave to amend her complaint

to correct her inadvertent omission of Kaiser’s name from paragraphs 92-96. This

result renders moot Ms. Kaiser’s argument that in the absence of federal claims

against her, the court should decline to exercise jurisdiction over the state-law

claims. See Doc. 47 at 9-12.

b. Substantive Due Process

“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 constitutional sense.” Davis v. Carter, 555 F.3d 979, 982 (11th Cir.

2009). “Liability for negligently inflicted harm is categorically beneath the threshold

of constitutional due process,” and “actions intended to injure in some way

unjustifiable by any government interest are those mostly likely to rise to the

conscience-shocking level.” Nix v. Franklin Cnty. Sch. Dist., 311 F.3d 1373, 1375-

76 (11th Cir. 2002) (internal citations and some marks omitted). “Acts that fall

between the poles of negligence and malign intent require courts to make closer

calls, in which the determination of what shocks the conscience is context-specific.”

Id. at 1376 (internal citation and quotation marks omitted).

Viewed in the light most favorable to Doe, Doe’s substantive due process

claim is that the Individual Defendants’ actions were conscience-shocking when:

(1) after Jane Smith reported that she was being sexually assaulted by the Harassing

Girls, Ms. Kaiser continued to allow multiple children at a time to use the restroom

without adult supervision, and Principal Collins responded only by making the

Harassing Girls run laps, thus allowing the Harassing Girls to continue to sexually

assault Doe, Doc. 46 ¶¶ 18-26, 49; and (2) after Doe reported that she was being

sexually assaulted by the Harassing Girls, Superintendent Murphy refused to “assist

in any way with providing a safety plan for Jane Doe,” and Principal Collins’s

response was so inadequate that over the ensuing weeks, Doe’s classmates were

allowed to cut her hair, shove her, and bite and bruise her face and lip, ultimately

causing her to withdraw from school. Id. ¶¶ 32-48, 50-51.

The Individual Defendants argue that these allegations do not state a claim

against them for violations of substantive due process because they had no duty to

protect Doe from repeated sexual assaults by her classmates. See Doc. 47 at 5-7.

They suggest that the allegations at most constitute deliberate indifference, which,

they argue, is insufficient to state a substantive due process claim. See id.

The Eleventh Circuit considered whether allegations of deliberate

indifference may satisfy the controlling standard for substantive due process claims

in Davis v. Carter, in which the plaintiffs’ son died the morning after an “intense

and unreasonable” high-school football practice. 555 F.3d at 980. The complaint

alleged that the football coaches were “deliberately indifferent to the safety risks

posed” by the practice. Id. at 984. The Eleventh Circuit observed that the coaches

had not intended to injure the plaintiffs’ son. Id. Rather, he had “voluntarily

participated in an extracurricular after-school activity” that resulted in his

“unfortunate” death the next morning. Id. Under those circumstances, the Eleventh

Circuit held that “the complaint’s allegations of deliberate indifference, without

more, do not rise to the conscience-shocking level required for a constitutional

violation.” Id.

Doe was not the “unfortunate” high-school-aged victim of an “intense and

unreasonable” but “voluntar[y] . . . extracurricular after-school activity.” See id. at

980, 984. Doe’s claim is that, as a first-grader, she was repeatedly sexually assaulted

at and during school because the Individual Defendants did nothing to stop

classmates under their supervision and with a known history of sexual harassment

from cornering her on the playground and in the restroom and sexually assaulting

her. Moreover, the court cannot say as a matter of law that if proven, depending on

the evidentiary record, Doe’s factual allegations could not shock the conscience. See

Doc. 46 ¶¶ 18-26, 49; Doc. 52 at 15 (“[S]imply ignoring Jane Smith’s complaint that

she was being sexually assaulted by children on the playground and doing nothing

but requiring the Harassing Girls to run laps and allowing the sexual assault to

continue to harm the Plaintiff, Jane Doe, can be found to ‘go beyond’ deliberate

indifference . . . .”) (citing Davis, 555 F.3d at 984). Accordingly, Doe has adequately

pleaded her substantive due process claim.

The Individual Defendants do not address Davis v. Carter, nor do they

mention the applicable legal standard of conduct that shocks the conscience. Rather,

they cite three other cases. The court considers each in turn. First, the Individual

Defendants cite DeShaney v. Winnebago County Department of Social Services, 489

U.S. 189 (1989), for the proposition that substantive due process does not require

the state to protect citizens from private actors. Doc. 47 at 5-6. But the Individual

Defendants do not offer any analysis as to why that case should control this one, see

id., and it doesn’t. There, the Supreme Court affirmed a summary judgment ruling

that the connection between the conduct of social service workers and the “private

violence” done to a child in his home by his father was “too attenuated” to establish

causation for a substantive due process claim. See DeShaney, 489 U.S. at 194. The

Court reasoned that “[w]hile the State may have been aware of the dangers that [the

child] faced in the free world, it played no part in their creation, nor did it do anything

to render him any more vulnerable to them.” Id. at 201. The opposite is true here:

viewed in the light most favorable to Doe, the complaint alleges that the Individual

Defendants’ conduct subjected and made Doe more vulnerable to sexual abuse and

harassment at school. Separately, the DeShaney Court was reluctant to impose a

constitutional duty on government employees to intervene into the private

relationship between a child and his father because of the delicate constitutional

balance in that situation: the social workers could face “charges of improperly

intruding into the parent-child relationship, charges based on the same Due Process

Clause that forms the basis for the present charge of failure to provide adequate

protection.” Id. at 203. That constitutional delicacy is absent here. DeShaney does

not require—or even support—dismissal of Doe’s claim at the pleading stage.

Second, the Individual Defendants cite Worthington v. Elmore County Board

of Education, 160 F. App’x 877 (11th Cir. 2005), for the proposition that “public

schools generally do not have the requisite level of control over children to give rise

to a constitutional duty to protect them from third-party actors” based on a “special

relationship,” id. at 881. See Doc. 47 at 6. But the court’s analysis of a substantive

due process claim no longer turns on whether the state-actor had a “special

relationship” with the plaintiff and thus a duty to protect; that standard was

“superceded by the standard employed by the Supreme Court in Collins [v. City of

Harker Heights, Tex., 503 U.S. 115 (1992)],” which is whether the state-actor’s

conduct “can be characterized as arbitrary or conscience shocking in a constitutional

sense.” Waddell v. Hendry Cnty. Sheriff’s Office, 329 F.3d 1300, 1305 (11th Cir.

2003). And in any event, Worthington is fundamentally unlike this case. There, the

defendants were granted judgment as a matter of law at the close of the plaintiff’s

case at trial because there was no evidence that the student who sexually assaulted

the plaintiff “had previously committed a sexual assault or was a known threat to do

so.” Worthington, 160 F. App’x at 885. Worthington does not hold that a complaint

fails to state a plausible claim for relief for violation of substantive due process when

it alleges that a first-grader was repeatedly sexually assaulted because school

officials failed to stop classmates with a known history of sexual assault from

sexually assaulting her at school.

Third, the Individual Defendants quote this excerpt of a sentence in Nix v.

Franklin County School District, 311 F.3d 1373 (11th Cir. 2002), a case in which a

high-school student died in a poorly-executed science experiment: “deliberate

indifference is insufficient to constitute a due-process violation in a non-custodial

setting.” Doc. 47 at 6 (quoting Nix, 311 F.3d at 1377). But in making that statement,

the Eleventh Circuit was describing caselaw rejecting deliberate indifference

“claims of government employees arising out of unsafe working conditions”

inherent to the employee’s job. Nix, 311 F.3d at 1377 (citing White v. Lemacks, 183

F.3d 1253 (11th Cir. 1999), in which nurses working at a jail were assaulted by an

inmate being held on assault charges; and Collins, 503 U.S. 115, in which “an

employee in the sanitation department . . . died of asphyxia after entering a manhole

to unstop a sewer line,” id. at 117). The Eleventh Circuit in Nix then went on to

describe prior cases deciding whether acts of school officials against high-school

and college students shocked the conscience and gave rise to a constitutional

violation. Nix, 311 F.3d at 1378. In affirming summary judgment for the defendants,

the Eleventh Circuit explicitly warned that its “holding is a narrow one; it would not

necessarily control, say, a similar accident in a 4th-grade classroom, or even other

types of seriously harmful behavior occurring in a high-school class.” Id.

at 1379 n.2. Doe’s case does not involve the limited context of a government

employee injured by unsafe conditions inherent in a job; nor was she accidentally

harmed when an experiment in her high-school science class went wrong. Nix does

not require dismissal of Doe’s claim at the pleading stage. See id.

Although the court cannot know whether Doe ultimately will adduce evidence

that will satisfy the demanding “shock-the-conscience” test, the Individual

Defendants have not identified any binding precedent holding that the conduct

alleged in Doe’s complaint as a matter of law cannot shock the conscience. “Rules

of due process are not . . . subject to mechanical application in unfamiliar territory,”

County of Sacramento v. Lewis, 523 U.S. 833, 850 (1998), particularly at the

pleading stage. The Individual Defendants’ motion to dismiss Doe’s substantive due

process claim is denied.

c. Equal Protection

“Section 1983 allows persons to sue individuals . . . acting under the color of

state law for violations of federal law,” including the Equal Protection Clause of the

Fourteenth Amendment, “which confers a federal constitutional right to be free from

sex discrimination.” Hill v. Cundiff, 797 F.3d 948, 976 (11th Cir. 2015). “A

governmental official may be held liable under section 1983 upon a showing of

deliberate indifference to known sexual harassment.” Id. at 978 (certain marks

omitted). Put differently, “deliberate indifference to sexual harassment is an equal

protection violation.” Id. at 979. To state a claim for relief under Section 1983, a

complaint must allege a fact from which the court could reasonably infer that “the

individual defendant actually knew of and acquiesced in the discriminatory

conduct.” Id. at 978 (internal quotation marks omitted).

The Individual Defendants do not dispute that Doe has pleaded that they were

deliberately indifferent to her sexual abuse and harassment. See Doc. 47 at 7-8.

Under Hill, those allegations are sufficient to state an equal protection claim on

which relief may be granted under Section 1983.

Rather, the Individual Defendants argue that the complaint fails to state such

a claim because it does not allege “facts that could support a reasonable inference

[that] Jane Doe’s treatment was because of her gender.” Doc. 47 at 8. Further, the

Individual Defendants assert that Doe’s allegations about Jane Smith are irrelevant

because, even if the allegations are true, they “do not show that the Defendants

treated a similarly situated student differently from Jane Doe. Rather, the allegations

are that Jane Smith was treated the same as Jane Doe.” Doc. 47 at 8.

Federal law does not require Doe to allege that she was sexually assaulted or

harassed differently from other girls who also were sexually assaulted or harassed.

She must allege that she was sexually assaulted or harassed because she is a girl,

which the court reasonably infers from Doe’s allegations about the sexual nature of

the assaults. If other girls (such as Smith) also were sexually assaulted, that does not

diminish, let alone destroy, Doe’s allegation that she was assaulted based on her sex.

On the Individual Defendants’ logic, if the Harassing Girls had sexually assaulted

many girls, none of those girls would have an equal protection claim for

discrimination based on sex, even if school officials were deliberately indifferent.

That is not the law.

C. State-Law Claims

The complaint asserts Alabama state-law claims sounding in negligence and

recklessness against the Board (Count I), negligence against Ms. Kaiser and

Principal Collins (Count II), and recklessness against Principal Collins (Count III).

Ms. Kaiser and Principal Collins argue that claims against them in their official

capacities are duplicative of claims against the Board itself, Doc. 47 at 1-3, and Doe

agrees, see Doc. 51 at 9. Therefore, the claims against Ms. Kaiser and Principal

Collins in their official capacities are dismissed.

The Board argues that it is absolutely immune from the state-law negligence

claim against it, citing Ex parte Wilcox County Board of Education, 285 So. 3d 765

(Ala. 2019), and Ex parte Bessemer City Board of Education, 143 So. 3d 726 (Ala.

2013). Doc. 19 at 2; Doc. 48 at 5 n.8. Doe did not respond to this argument. See

Doc. 52. The court finds that the Board is immune from the claim in Count I, so that

claim is dismissed.

Principal Collins and Ms. Kaiser argue that they cannot be held liable in their

individual capacities for the torts alleged in Counts II (negligence as to Defendants

Kaiser and Collins) and III (recklessness/wantonness as to Defendant Collins)

because they could not suspend or expel the Harassing Girls. Doc. 47 at 4-5. These

defendants argue that “[u]nder Alabama law, only the Board of Education has

authority to suspend or expel” students, id., and they rely on Adams v. City of Dothan

Board of Education, 485 So. 2d 757 (Ala. Civ. App. 1986), which explains that

“school boards and officials” have authority to suspend and expel students, id. at

759. But Adams does not hold, or even suggest, that only a board has that authority.

Indeed, under the code of conduct for the school in Adams, the principal was

“required to suspend a student who commits a terminal offense and to recommend

to the Board that the student be expelled pending final determination by the Board.”

Id. at 759-60. Accordingly, Adams does not stand for a broad, blunt rule that, under

Alabama law, neither a principal nor a teacher ever may be found liable on a tort

claim for their failure to discipline a student through suspension or expulsion.

In their reply brief, Principal Collins and Ms. Kaiser make a new argument as

to why the state-law claims against them should be dismissed. See Doc. 54 at 3-4

(citing D.A.C. v. Thrasher, 655 So. 2d 959 (Ala. 1995)). The court ordinarily does

not consider arguments raised for the first time in reply. Even if the argument were

properly made, it would fail. In Thrasher, the Alabama Supreme Court affirmed

summary judgment on the ground that the plaintiff failed to establish proximate

causation because the plaintiff failed to prove that if a school principal had notified

the school board of past accusations against a tenured teacher, the board would have

held a hearing, believed the accusers, disbelieved the teacher, and removed the

teacher, thereby preventing the teacher’s later molestation of the plaintiff. 655 So.

2d at 961-62. It would be premature at this stage of the case for the court to draw

any conclusions about what evidence of causation Doe might or might not adduce,

and what that evidence might be sufficient to establish. Accordingly, this new

argument does not require dismissal of Doe’s state-law claims.

IV. CONCLUSION

For the foregoing reasons, the court will enter an order granting in part the

Board’s motion and dismissing Count I; denying in part the Individual Defendants’

motion; granting Doe’s request for leave to file an amended complaint to add Ms.

Kaiser to the narrative paragraphs in Count V; and dismissing claims against the

Individual Defendants in their official capacity.

DONE and ORDERED this 16th day of September, 2020.

ANNA M. hans.

UNITED STATES DISTRICT JUDGE

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