Sturdivant v. Fine ( 2022 )

Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 7, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
CAMILLE STURDIVANT,
Plaintiff - Appellee,
v. No. 20-3147
CARLEY FINE,
Defendant - Appellant,
and
BLUE VALLEY UNIFIED SCHOOL
DISTRICT, USD 229; AMY
PRESSLY,
Defendants.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:18-CV-02661-JWL-TJJ)
_________________________________
Gregory P. Goheen, McAnany, Van Cleave & Phillips, P.A., Kansas City,
Kansas, on behalf of the Defendant-Appellant.
Marie L. Gockel (Lynne Jaben Bratcher and Erin Vernon with her on the
brief), Bratcher Gockel Law, L.C., Independence, Missouri, on behalf of
the Plaintiff-Appellee.
_________________________________
Before MATHESON, BACHARACH, and CARSON, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 2
_________________________________
Ms. Camille Sturdivant 1 sued her former coach on a high school
dance team, Ms. Carley Fine, invoking 42 U.S.C. § 1983 and alleging race
discrimination in violation of the Fourteenth Amendment’s Equal
Protection Clause. 2 See 42 U.S.C. § 1983; U.S. Const. amend. XIV. Ms.
Fine moved for summary judgment, urging qualified immunity based on the
absence of
 an act under color of state law and
 a denial of equal protection.
The district court denied the motion, concluding that a reasonable
factfinder could infer that Ms. Fine had acted as head coach and
“intentionally deprived [Camille] of educational benefits based on [her]
race.” Appellant’s App’x at 319. Ms. Fine appealed.
Ms. Fine presents two alternative arguments for qualified immunity:
1. She did not act under color of state law because she was no
longer employed as the head coach when she allegedly violated
Camille’s rights.
2. She did not violate a clearly established constitutional right.
1
We refer to Ms. Sturdivant by her first name (Camille). We mean no
disrespect; we use her first name only for clarity because she was a high-
school student when the events took place.
2
Camille also sued the school district, the principal, the dance team’s
choreographer, and a teacher whose child had also danced on Camille’s
team; but the claims against these parties are not at issue.
2
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 3
We lack jurisdiction to consider Ms. Fine’s first argument (that she
did not act under color of state law). Our jurisdiction in this interlocutory
appeal does not extend to the applicability of § 1983. We thus dismiss this
portion of the appeal.
We do have jurisdiction to consider Ms. Fine’s second argument (that
she didn’t violate a clearly established right). But a reasonable factfinder
could find the violation of a clearly established right to equal protection.
So we affirm the district court’s denial of summary judgment based on
qualified immunity.
I. Ms. Fine uses a racial slur when texting about Camille.
Camille, an African-American student, participated in the Dazzlers
dance team at her high school. The head coach was Ms. Fine.
In her senior year of high school, Camille earned a spot on a major
university’s elite dance team. Another girl (Maggie) didn’t make the team.
When Ms. Fine learned the results, she texted the Dazzlers’ choreographer,
attributing Camille’s success to her race:
Choreographer: i can’t believe maggie didn’t make it again
i’m heart broken
Ms. Fine: I KNOW
AND CAMILLE MADE [THE TEAM]
I can’t talk about it
Choreographer: THAT DOESNT MAKE SENSE
i’m so mad
3
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 4
Ms. Fine: It actually makes my stomach
Hurt
Bc she’s f*****g black
I hate that
Id. at 154, 227 (capitalization in original).
During a later dance practice, Camille scanned Ms. Fine’s text
messages, trying to find music for a dance routine. While scanning the
texts, Camille spotted Ms. Fine’s exchange with the choreographer.
Camille photographed the texts and shared them with her parents, who
complained to the principal.
II. Ms. Fine loses her title as the Dazzlers’ head coach.
The next day, the school’s principal and director of human resources
told Ms. Fine that
 she was no longer the dance coach and couldn’t participate in
any upcoming dance team activities, including the school’s
final Spring Show, and
 she had fulfilled her contract with the school.
The contract lasted another ten days, and Ms. Fine obtained payment for
these days.
The principal announced to the team that Ms. Fine would no longer
serve as the head coach and arranged for two other faculty members to fill
in. But the evidence suggests that these faculty members never assumed the
head coach’s duties.
4
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 5
III. Ms. Fine texts a Dazzler, telling her to boycott Camille.
After the principal’s announcement to the team, Ms. Fine received a
text from her younger sister, who was also on the dance team. The text
related to a tradition for team members to present seniors with flowers.
Because Camille was the only senior on the team, she’d expect
flowers after the Spring Show. Flouting this tradition, Ms. Fine told her
sister to arrange a boycott:
Sister: Originally Camille asked me to give her flowers
But I’m not gonna anymore
Ms. Fine: Noooooooo your joking?!?!?
Did she unask you
Sister: I mean no
She never said anything
But like I feel like she honestly thinks I’m doing it still
but I’m not
Ms. Fine: You can’t
Get everyone to boycot[t]
Id. at 238.
IV. The Dazzlers exclude Camille and attend off-campus events with
Ms. Fine.
The next night marked the start of the Dazzlers’ Spring Show. By
tradition, Ms. Fine would give an inspirational talk before the show. The
parents arranged for all the Dazzlers—except Camille—to meet at a team
member’s home. Ms. Fine attended and gave the team a “pep talk.”
5
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 6
The team then conducted its Spring Show on two straight nights. On
the second night, all the Dazzlers—except Camille—wore ribbons with Ms.
Fine’s initials and took team photos. The other Dazzlers also shunned the
tradition of presenting flowers to the only senior on the squad (Camille).
Throughout the Spring Show, virtually every member of the dance team
ignored Camille. The sole exception was the team’s only other African-
American member.
The next week, all the Dazzlers were supposed to sit together in their
first-hour class. But at the request of Camille’s mother, the principal
excused Camille from attending the first-hour class for the final four days.
Camille was also excluded from the team banquet. Parents of the
team members cancelled the banquet, but then arranged a team banquet
away from the campus. Camille was the only Dazzler excluded.
V. We lack jurisdiction to consider Ms. Fine’s denial of action under
color of state law.
Ms. Fine denies employment as the coach when the boycott took
place, arguing that her conduct as a private individual didn’t constitute an
act under color of state law. Action under color of state law is an element
of § 1983. Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir.
2016). But in this interlocutory appeal, we have jurisdiction only to
consider the district court’s denial of qualified immunity. See Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985). And a challenge to the elements of
6
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 7
§ 1983 does not involve qualified immunity. So we dismiss Ms. Fine’s
argument that she was not acting under color of state law.
Qualified immunity protects public officials from liability for
violating statutory or constitutional rights that are not clearly established.
See Pearson v. Callahan, 555 U.S. 223, 231 (2009). The doctrine ensures
that officials may incur liability only upon fair notice that their conduct is
unlawful. Hope v. Pelzer, 536 U.S. 730, 739 (2002).
The first step in qualified immunity is to determine whether someone
could reasonably find a constitutional violation. See Brown v. Flowers, 974
F.3d 1178, 1182 (10th Cir. 2020). For this step, Camille alleges denial of
her right to equal protection under the Fourteenth Amendment.
Ms. Fine argues that no reasonable jury could find a violation of
Camille’s constitutional rights because she did not act under color of state
law. But action under color of state law is an element of § 1983, not the
Fourteenth Amendment’s Equal Protection Clause. See, e.g., Am. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999).
Unlike the Constitution, “[§ 1983] is not itself a source of
substantive rights.” Sawyers v. Norton, 962 F.3d 1270, 1282 (10th Cir.
2020) (quoting Margheim v. Buljko, 855 F.3d 1077, 1084 (10th Cir.
2017)). 3 Section 1983 serves instead only as a vehicle to “provide[] relief
3
The Fourteenth Amendment’s Equal Protection Clause requires state
action. This requirement is closely related to § 1983’s requirement of
7
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 8
against those who, acting under color of law, violate federal rights created
elsewhere.” Brown v. Buhman, 822 F.3d 1151, 1161 n.9 (10th Cir. 2016)
(quoting Reynolds v. Sch. Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1536
(10th Cir. 1995)). 4
Our review here is limited to qualified immunity, which focuses on
whether Ms. Fine violated Camille’s right to equal protection. We lack
jurisdiction to address whether Camille can use § 1983 as a statutory
vehicle to obtain a remedy. This part of the appeal thus falls outside our
jurisdiction.
VI. Ms. Fine wasn’t entitled to qualified immunity based on her
denial of discrimination to withhold an educational benefit.
Although we lack jurisdiction to consider Ms. Fine’s denial of action
under color of state law, she also insists that she didn’t discriminate
against Camille or deny her an educational benefit. We have jurisdiction
action under color of state law. See Lugar v. Edmondson Oil Co., Inc., 457
U.S. 922, 935 & n.18 (1982). Despite this close relationship, Ms. Fine has
not developed a discrete challenge to the Fourteenth Amendment’s
requirement of state action. See United States v. Martinez, 518 F.3d 763,
768 (10th Cir. 2008) (stating that when the appellant does not develop an
argument in his or her opening brief, we deem that argument waived).
4
Ms. Fine made the same point in district court, arguing: “Because
§ 1983 itself ‘does not create any substantive rights, but merely provides
relief against those who, acting under color of law, violate federal rights
created elsewhere’, Plaintiff must assert her claim based on some
independent basis under the U.S. Constitution or federal statute.”
Appellant’s App’x at 84 (quoting Brown v. Buhman, 822 F.3d 1151, 1161
n.9 (10th Cir. 2016)).
8
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 9
over this part of the appeal. See Mitchell v. Forsyth, 472 U.S. 511, 530
(1985). Though jurisdiction exists, we affirm the district court’s denial of
qualified immunity.
A. Camille’s evidence reflected a denial of equal protection.
The threshold issue is the existence of a constitutional violation. See
p. 7, above. For this issue, the parties agree that Camille must prove that
Ms. Fine
 treated Camille differently than others similarly situated based
on race 5 and
 deprived Camille of an educational benefit or opportunity.
We thus view the claim “through the prism of” these elements. United
States v. Dominguez, 998 F.3d 1094, 1110 (10th Cir. 2021). 6
Ms. Fine challenges
 the first element on the ground that she did not treat Camille
differently than similarly situated students and
 the second element on the ground that the boycott didn’t affect
educational benefits or opportunities.
5
Ms. Fine doesn’t dispute the reasonableness of a finding of racial
animus. See Appellant’s Reply Br. at 6 (stating that Ms. Fine’s racial
motivation “is not an issue”).
6
We do not imply that these elements “invariably govern[];” we
instead accept the parties’ agreement on these elements. Dominguez, 998
F.3d at 1110 n.10.
9
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 10
1. Someone could reasonably find that Ms. Fine treated
Camille differently than similarly situated students.
Ms. Fine denies acting as the coach and argues that the team-
members’ families acted on their own. 7 We reject these arguments.
Ms. Fine’s role in the boycott would be obvious under Camille’s
version of events. In considering that version, 8 the district court concluded
that someone could reasonably find ten facts:
1. Ms. Fine texted that Camille had made the university dance
team “[b]c she’s f*****g black.”
2. After Ms. Fine lost her title as head coach, she texted a Dazzler
to “[g]et everyone to boycot[t].”
3. Ms. Fine then attended a Dazzler team meeting in a private
home even though no one had invited Camille.
4. Ms. Fine gave her traditional inspirational speech at the
meeting to prepare the other dancers for the Spring Show.
5. At the Spring Show, all other dancers wore ribbons bearing Ms.
Fine’s initials.
6. The other dancers excluded Camille from photographs of the
team and jettisoned tradition by refusing to give flowers to
Camille as the only graduating senior.
7. The other dancers ostracized Camille, causing her to miss four
classes.
7
Ms. Fine couches this argument as a denial of conduct under color of
state law. But she also appears to imply that she couldn’t violate the Equal
Protection Clause because neither the school nor the families had given her
any authority over the team.
8
In considering qualified immunity, we ordinarily accept the plaintiff’s
version of facts. A.M. v. Holmes, 830 F.3d 1123, 1136 (10th Cir. 2016).
10
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 11
8. Ms. Fine attended a team meeting even though no one had
invited Camille.
9. While acting to exclude Camille, Ms. Fine remained in contact
with the other dancers and their parents.
10. Ms. Fine continued to get paid under her contract while the
team ostracized Camille, with no other employee filling the
coach role.
Appellant’s App’x at 293–98, 313–15.
Under these facts, a reasonable factfinder could infer that Ms. Fine
had treated Camille differently than other Dazzlers by
 exercising the authority of a coach to lead a boycott and
 causing the exclusion of Camille from team activities.
2. Deprivation of an Educational Benefit or Opportunity
For an equal-protection claim, the plaintiff must generally show that
the discrimination caused an adverse effect. Ashaheed v. Currington,
7 F.4th 1236, 1250 (10th Cir. 2021). For purposes of this showing, the
parties agree that the adverse effect must involve the deprivation of an
educational benefit or opportunity. We can thus assume for the sake of
argument that Camille had to create a triable fact-issue on the loss of an
educational benefit or opportunity. See note 6, above.
Ms. Fine argues that she attended only private events taking place
away from the school (like the team meeting and banquet), which did not
constitute educational benefits or opportunities. But even if the team
11
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 12
meeting and banquet had constituted private events, Camille presented
evidence of a need to miss four first-hour classes. A reasonable factfinder
could thus infer that Ms. Fine’s conduct had ultimately caused the loss of
an educational benefit or opportunity.
* * *
We conclude that a reasonable factfinder could infer that Ms. Fine
had violated Camille’s right to equal protection.
B. Camille’s evidence also reflected the violation of a clearly
established constitutional right.
We must also determine whether Camille’s right to equal protection
was clearly established at the time of the relevant conduct. Brown v.
Flowers, 974 F.3d 1178, 1182 (10th Cir. 2020).
A constitutional right is clearly established if “every reasonable
official would have understood that” their conduct violated that right. A.N.
ex rel. Ponder v. Syling, 928 F.3d 1191, 1197 (10th Cir. 2019) (quoting
Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)). A right may be
clearly established by a precedent or the weight of authority elsewhere.
Brown, 974 F.3d at 1184. “[B]ut a case directly on point is not required so
long as ‘existing precedent [has] placed the . . . constitutional question
beyond debate.’” A.N., 928 F.3d at 1197 (second alteration in original)
(quoting White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)).
12
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 13
“[G]eneral statements of the law are not inherently incapable of
giving fair and clear warning” that particular conduct is unconstitutional.
Hope v. Pelzer, 536 U.S. 730, 741 (2002) (quoting United States v. Lanier,
520 U.S. 259, 271 (1997)). “[A] general constitutional rule . . . may apply
with obvious clarity to the specific conduct in question” even if no court
has held that conduct unlawful. Id. (quoting Lanier, 520 U.S. at 271); see
also Taylor v. Riojas, 141 S. Ct. 52, 54 (2020) (per curiam) (concluding
that the extreme facts did not require a case on point because “any
reasonable officer should have realized that [the plaintiff]’s conditions of
confinement [had] offended the Constitution”).
We recently recognized that the Equal Protection Clause prohibits the
“intentional, arbitrary and unequal treatment of similarly situated
individuals . . . .” Ashaheed v. Currington, 7 F.4th 1236, 1247 (10th Cir.
2021) (quoting A.N. ex rel. Ponder v. Syling, 928 F.3d 1191, 1198 (10th
Cir. 2019)). Applying this right over 70 years ago, the Supreme Court held
that an African-American student “must receive the same treatment at the
hands of the state as students of other races.” McLaurin v. Okla. State
Regents for Higher Educ., 339 U.S. 637, 642 (1950); see also Brown v. Bd.
of Educ. of Topeka, Kan., 349 U.S. 294, 298 (1955) (“declaring the
fundamental principle that racial discrimination in public education is
unconstitutional”).
13
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 14
Given the long-standing recognition of an African-American
student’s right to equal treatment, Ms. Fine had fair notice that the Equal
Protection Clause would prohibit her orchestration of a racially motivated
boycott against Camille.
Ms. Fine’s three contrary arguments are not persuasive.
First, Ms. Fine argues that the district court should not have relied on
Ramirez v. Department of Corrections, 222 F.3d 1238, 1243–44 (10th Cir.
2000), because there the facts had differed from ours. We agree with Ms.
Fine that Ramirez had differed factually because it involved discrimination
against an employee rather than a student. But the lack of a precedent
involving a student does not necessarily bear on the clarity of the
constitutional right. See Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1251
(10th Cir. 1999) (rejecting the defendants’ argument for qualified
immunity based on the lack of a prior opinion “holding an individual
school employee liable for sexual harassment [of a student] under the
Fourteenth Amendment” (emphasis in original)); see also Sh.A. ex rel. J.A.
v. Tucumcari Mun. Sch., 321 F.3d 1285, 1288–89 (10th Cir. 2003)
(concluding that a teacher was not entitled to qualified immunity from a
student’s claim of sexual harassment because the right had been clearly
established in employment cases). Ramirez aside, a constitutional right
may be clearly established based on general statements of the law. See pp.
12–13, above.
14
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 15
Second, Ms. Fine argues that White v. Pauly requires case law with
similar facts. See White v. Pauly, 137 S. Ct. 548 (2017) (per curiam). But
the Supreme Court in White recognized that “a case directly on point” is
unnecessary if the constitutional right is “beyond debate.” Id. at 551(quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)). We’ve explained that
White acknowledged the potential for “general rules of law.” A.N. ex rel.
Ponder v. Syling, 928 F.3d 1191, 1198 (10th Cir. 2019). Given this
acknowledgment, we’ve recognized that conduct can sometimes violate a
clearly established right “even though the very action in question has not
previously been held unlawful.” Id. (quoting Hope v. Pelzer, 536 U.S. 730,
741 (2002)). Our case supplies an example: Even without a precedent
involving similar facts, the Equal Protection Clause obviously prohibited
an acting head coach from orchestrating a boycott based on a team
member’s race.
Third, Ms. Fine relies on the district court’s statement that “[n]either
party has set forth any framework for analyzing whether plaintiff’s
evidence is sufficient to establish a constitutional violation.” Appellant’s
Opening Br. at 19 (quoting Appellant’s App’x at 310). This reliance is
misplaced, for the parties’ lack of analysis about the applicable test does
not trigger qualified immunity; what matters is whether the defendant’s
conduct violated a clearly established constitutional right. See Brown v.
Flowers, 974 F.3d 1178, 1182 (10th Cir. 2020). The constitutional right
15
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 16
here—protection from a racially motivated boycott—was clearly
established.
In acting as the coach, Ms. Fine had notice that our case law would
prohibit exclusion of a team member based on race. For example, in
Seamons v. Snow, we concluded that a high school football coach had
lacked qualified immunity when he kicked a player off of the team for
refusing to apologize after the player had reported a hazing incident. 206
F.3d 1021, 1030–31 (10th Cir. 2000). There we concluded that
 a case on point was “not required” and
 a reasonable coach should have known that the Constitution had
prohibited exclusion of students based on their exercise of free
speech.
Id. at 1030 (quoting Patrick v. Miller, 953 F.2d 1240, 1249 (10th Cir.
1992)). Though our case involves a denial of equal protection rather than a
denial of free speech, the constitutional violation would have been equally
obvious to a high school dance coach.
VII. Conclusion
We lack jurisdiction to consider Ms. Fine’s argument that she did not
act under color of state law. But we have jurisdiction to consider whether
Ms. Fine violated a clearly established constitutional right. In considering
that question, we view the evidence favorably to Camille. With that view, a
16
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 17
reasonable factfinder could determine that Ms. Fine had violated a clearly
established constitutional right. We thus
 dismiss Ms. Fine’s assertion of qualified immunity as a private
individual who didn’t act under color of state law and
 affirm the denial of summary judgment on the violation of a
clearly established right.
17
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 18
Sturdivant v. Fine, No. 20-3147
BACHARACH, J., concurring
I join the majority opinion, but write separately to address an aspect
of Ms. Fine’s denial of action under color of state law. In oral argument,
Ms. Fine argued that she was acting only as a private individual. As the
majority states, we lack jurisdiction to consider this argument. But if we
were to credit Ms. Fine’s characterization of herself as a private actor, she
likely couldn’t assert qualified immunity.
When sued under § 1983, private individuals are not automatically
entitled to assert qualified immunity. Richardson v. McKnight, 521 U.S.
399, 412 (1997). If Ms. Fine had acted as a private individual, she could
assert qualified immunity only if she showed
 a firmly rooted common-law tradition of immunity for similar
private individuals or
 a strong basis in public policy to extend qualified immunity to
similar private individuals.
Tanner v. McMurray, 989 F.3d 860, 866–67 (10th Cir. 2021).
Ms. Fine probably failed to meet this burden. Both here and in
district court, she appeared to assume that she could assert qualified
immunity even if she were acting only as a private individual. Appellant’s
Opening Br. at 10; Appellant’s App’x at 88; Oral Argument at 4:15–5:32,
6:30–43. But she
Appellate Case: 20-3147 Document: 010110628711 Date Filed: 01/07/2022 Page: 19
 cites no authority extending qualified immunity to former
government employees for action taken after leaving
government employment and
 hasn’t discussed a history of immunity for former government
employees or policy reasons to extend qualified immunity to
former government employees.
So Ms. Fine has probably failed to show a right to assert qualified
immunity for her actions after leaving governmental employment. See
Domina v. Van Pelt, 235 F.3d 1091, 1096 (8th Cir. 2000) (declining to
consider a former county employee’s challenge to the denial of qualified
immunity because he hadn’t explained why this defense should be available
to him as a private citizen). So she would likely lack eligibility for
qualified immunity if we were to credit her characterization as a private
individual.
As the appellant, Ms. Fine bears the burden to demonstrate the
district court’s error and her entitlement to relief. Hernandez v. Starbuck,
69 F.3d 1089, 1093 (10th Cir. 1995). So the relevant question is whether
Ms. Fine’s characterization of her status would entitle her to qualified
immunity. If Ms. Fine were acting only as a private individual, as she
insists, she would probably lack eligibility for qualified immunity.
2