J.S. Ex Rel. J.S. v. Houston County Board of Education , 877 F.3d 979 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14306
________________________
D.C. Docket No. 1:14-cv-01196-WHA-WC
J.S., III,
a minor, by and through J.S. Jr. and M.S., his parents
and next friends,
Plaintiff - Appellant,
versus
THE HOUSTON COUNTY BOARD OF EDUCATION,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(October 2, 2017)
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Before WILLIAM PRYOR, JORDAN, and RIPPLE, * Circuit Judges.
PER CURIAM:
J.S., III is an elementary school student with severe physical disabilities and
cognitive impairments. Through his parents, J.S., Jr. and M.S., he appeals the
district court’s grant of summary judgment in favor of the Houston County Board
of Education on his claims under Title II of the Americans with Disabilities Act, 42
U.S.C. § 12131 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. J.S.
alleges that he was discriminated against on the basis of his disability while
attending Wicksburg High School, a kindergarten through twelfth-grade school in
Houston County, Alabama. Following oral argument and a review of the record,
we affirm in part and reverse in part the district court’s order, and remand for
further proceedings.
I
When J.S. was in the third grade (2010 to 2011) and fourth grade (2011 to
2012), he received individual education plans (IEPs), under which he was assigned
to regular and special education classrooms. The IEPs noted that J.S. had poor
balance, used a walker and a wheelchair at school, needed help with using the
restroom, and received physical and occupational services while at school. The
IEPs specified that J.S. was to spend 80 percent of his time in the regular
*
The Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit, sitting
by designation.
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classroom and 20 percent of his time in the special education classroom.
Alicia Brown was J.S.’ special education teacher during his third-grade year and
part of his fourth-grade year and Angie Boatright was his regular classroom
teacher during his fourth-grade year. Drew Faircloth was assigned to work with
J.S. as a teacher’s aide/special education paraprofessional starting J.S.’ third-grade
year. Mr. Faircloth helped J.S. with going to the restroom, getting around the
school campus, going to lunch and recess, participating in physical education, and
completing class work.
In late 2011 and early 2012, Mr. Faircloth began taking J.S. out of his
regular classroom and bringing him to the school’s weight room, purportedly
because J.S. was disruptive in the classroom and because they could do physical
therapy and use the private restroom there. Ms. Boatright testified that she never
instructed Mr. Faircloth to take J.S. out of the classroom for being a distraction to
others or being distracted himself. See Boatright Dep., D.E. 28-20 at 24–25, 58.
Matt Barton and Brandon Sunday, both elementary physical education
teachers and coaches at Wicksburg, observed Mr. Faircloth and J.S. in the weight
room. Coach Barton testified that Mr. Faircloth brought J.S. into the weight room
“fairly often” and that on some days J.S. completed class work and worksheets in
the weight room, while on other days he would be just “kind of . . . hanging out”
while Mr. Faircloth was sitting in the coach’s office using the computer. See
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Barton Dep., D.E. 28-22 at 23–27. Coach Sunday said that he saw J.S. and
Mr. Faircloth in the weight room at least once a week generally, sometimes twice a
week. He testified that J.S. would often be doing class work at a small desk, while
Mr. Faircloth was on the other side of the window inside the coach’s office talking
with Coach Barton, occasionally helping J.S. if he had a question. See Sunday
Dep., D.E. 28-23 at 32–33.
Ms. Brown testified that she heard from other teachers that Mr. Faircloth
was taking J.S. to the weight room and informed Wicksburg Principal
Cheryl Smith at least twice. See Brown Dep., D.E. 28-26 at 25, 30–31, 38.
Principal Smith testified that she spoke with Mr. Faircloth and asked him to stop
taking J.S. to the weight room. See Smith Dep., D.E. 28-27 at 72. Mr. Faircloth
continued to remove J.S. from the classroom.
In March of 2012, a fellow student, R.T., witnessed Mr. Faircloth kick J.S.’
wheelchair, while telling him to be quiet, refusing to pick up his pencil for him,
and otherwise berating him. R.T. told her parents, who then informed J.S.’ parents
about what R.T. had witnessed. In response, J.S.’ parents placed an audio recorder
underneath J.S.’ wheelchair for several days. According to J.S.’ parents, the device
captured verbal abuse by Mr. Faircloth and Ms. Brown, and possible physical
abuse by Mr. Faircloth.
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J.S.’ parents contacted the school district’s special education coordinator,
Denise Whitfield, to report what they had heard on the recordings. Mr. Faircloth
and Ms. Brown were placed on administrative leave and received written
reprimands from Principal Smith. Mr. Faircloth ultimately resigned from his
position and the School Board decided not to renew Ms. Brown’s contract.
J.S., through his parents, originally filed an action in 2012 against the
School Board, Mr. Faircloth, Ms. Brown, and others. He settled his claims against
Mr. Faircloth and Ms. Brown. The district court granted summary judgment to the
School Board because J.S. had failed to exhaust his administrative remedies, but
dismissed the suit without prejudice. J.S. subsequently filed an administrative due
process complaint with the Alabama Department of Education pursuant to the
Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., and J.S. and
the School Board resolved that dispute. J.S. then filed this action against the
School Board, alleging Title II and § 504 violations relating to his removal from
the classroom and the verbal and physical abuse.
The district court granted summary judgment in favor of the School Board,
concluding that (1) regarding his removal from the classroom, J.S. had not shown
more than a failure to provide a free appropriate public education (FAPE) under
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the IDEA; and (2) J.S. had not provided any evidence that the School Board had
notice of future verbal and physical abuse. This appeal followed.1
II
We review the grant of summary judgment de novo, applying the same legal
standard used by the district court and drawing all factual inferences in the light
most favorable to the nonmoving party. See Johnson v. Bd. of Regents of Univ. of
Georgia, 263 F.3d 1234, 1242–43 (11th Cir. 2001). Summary judgment is
appropriate when “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits . . . show that there is no genuine
issue as to any material fact and that the nonmoving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.
R. Civ. P. 56(c)). In order to overcome a motion for summary judgment, the
moving party must present more than a mere scintilla of evidence supporting his
position, and must make a sufficient showing that a jury could reasonably find in
his favor. See Brooks v. Cty. Comm’n of Jefferson Cty., Ala., 446 F.3d 1160, 1162
(11th Cir. 2006).
1
The district court denied J.S.’ motion to alter or amend the judgment based on a Department of
Justice Letter of Finding and a decision by this Court that were both issued after the motion for
summary judgment was briefed. J.S. does not appear to challenge that ruling.
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III
Title II of the ADA and § 504 of the Rehabilitation Act forbid discrimination
on the basis of disability in the provision of public services. Title II of the ADA
provides that “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.” 42 U.S.C. § 12132. Similarly, § 504 states that “[n]o otherwise
qualified individual with a disability in the United States, . . . shall, solely by
reason of her or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance.” 29 U.S.C. § 794.
Discrimination claims under the ADA and the Rehabilitation Act are
governed by the same standards, and the two claims are generally discussed
together. See Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000). To state a claim
under Title II and § 504, a plaintiff must demonstrate “(1) that he is a qualified
individual with a disability; (2) that he was either excluded from participation in or
denied the benefits of a public entity’s services, programs, or activities, or was
otherwise discriminated against by the public entity; and (3) that the exclusion,
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denial of benefit, or discrimination was by reason of the plaintiff’s disability.”
Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1083 (11th Cir. 2007). 2
J.S. argues that the district court erred by mischaracterizing his Title II and
§ 504 claim regarding his removal from his regular classroom as merely a claim
that he was denied a FAPE, a right guaranteed under the IDEA. The IDEA
“guarantees individually tailored educational services,” whereas Title II and § 504
“promise non-discriminatory access to public institutions”—specifically aiming “to
root out disability-based discrimination, enabling each covered person . . . to
participate equally to all others in public facilities and federally funded programs.”
Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 756 (2017). Courts have recognized
that there is often “some overlap in coverage” across these statutes and that “[t]he
same conduct might violate all three statutes.” Id.The district court reasoned that, in order to demonstrate discrimination in the
education context, a plaintiff must show more than a simple failure to provide a
FAPE; he must also demonstrate bad faith or gross misjudgment by the school, or
show that he suffered discrimination solely because of his disability. The district
court concluded that J.S. had not presented evidence that the departure from his
IEP amounted to gross misjudgment, and had not demonstrated that he was treated
differently or excluded from something that other students received. We agree that
2
It is undisputed that J.S. is a qualified individual with a disability.
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“[t]o prove discrimination in the education context, something more than a mere
failure to provide the ‘free appropriate education’ required by [IDEA] must be
shown,” Sellers v. Sch. Bd. of City of Mannassas, Va., 141 F.3d 524, 529 (4th Cir.
1998) (internal quotation marks and citation omitted), but disagree with the district
court’s conclusion that J.S. merely set out an IDEA claim.
In the context of determining whether a claim under Title II or § 504 seeks
relief that is also available under the IDEA and is therefore also subject to the
IDEA’s exhaustion requirement, the Supreme Court has stated that “[w]hat matters
is the crux—or, in legal-speak, the gravamen—of the plaintiff’s complaint, setting
aside any attempts at artful pleading.” Fry, 137 S. Ct. at 755. Although we are not
examining the issue of exhaustion under the IDEA, we find this guidance
instructive.
To determine whether a claim seeks relief available under the IDEA, the
Supreme Court has proposed that courts ask a pair of hypothetical questions: first,
whether the claim could have been brought if the alleged conduct occurred at a
public facility outside of a school (such as a public theater or library); and second,
whether it could have been brought by an adult at the school. If the answer to these
questions is no, then the complaint likely concerns a FAPE violation under the
IDEA. See id. For example, an allegation that a school building lacks access to
ramps would likely state a claim under Title II, whereas an allegation that a student
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with a learning disability was not provided remedial tutoring in mathematics would
likely assert a claim only for the denial of a FAPE. See id. at 756–57. Another
factor to consider is the history of the proceedings and whether a plaintiff has
previously invoked the IDEA’s formal procedures to handle the dispute. See id. at
757.3
The cause of action here does not fit neatly into Fry’s hypotheticals. The
complaint here specifically alleges that the School Board “allowed J.S. [ ] to be
removed from his regular classroom, based on discriminatory reasons and for no
purpose related to his education.” Compl., D.E. 1 at 46. Unlike the examples in
Fry, here we cannot as easily divorce J.S.’ claim of isolation from the context of
him being an elementary student at a school. Although this claim could be brought
as a FAPE violation for failure to follow J.S.’ IEP, we conclude that it is also
cognizable as a separate claim for intentional discrimination under the ADA and
§ 504.
In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the Supreme Court
concluded that unjustified institutional isolation of persons with disabilities is a
form of discrimination based on disability under Title II. See id. at 599–600. The
Court considered two important factors in coming to this conclusion: one, that
3
Justice Alito’s concurrence in Fry took issue with the majority’s hypotheticals, noting that
these “misleading clues” “make sense only if there is no overlap between the relief available
under” the IDEA and Title II and § 504. Id. at 759 (Alito, J., concurring) (internal quotation
marks omitted and alteration adopted). As we explain, this may be one of those circumstances in
which Fry’s hypotheticals could “lead [us] astray.” Id.
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“institutional placement of persons who can handle and benefit from community
settings perpetuates unwarranted assumptions that persons so isolated are incapable
or unworthy of participating in community life”; and, two, that “confinement in an
institution severely diminishes the everyday life activities of individuals.” Id. at
600–01.
Isolation via institutionalization is admittedly a more extreme and restrictive
action than removal from a school classroom, but the reasoning in Olmstead seems
to apply here. J.S. has alleged—and has provided evidence tending to show—that
he was, with some frequency, excluded and isolated from his classroom and peers
on the basis of his disability. Although the circumstances alleged here do involve a
violation of J.S.’ IEP, they also implicate those further, intangible consequences of
discrimination contemplated in Olmstead that could result from isolation, such as
stigmatization and deprivation of opportunities for enriching interaction with
fellow students. These injuries reach beyond a misdiagnosis or failure to provide
appropriate remedial coursework. Compare K.M. ex rel. D.G. v. Hyde Park Cent.
Sch. Dist., 381 F. Supp. 2d 343, 360 (S.D.N.Y. 2005) (recognizing that
“unnecessary social isolation has been considered a form of actionable
discrimination” and concluding that, in light of Olmstead, a disabled student’s
isolation during lunch appears to be such a claim), with Sellers, 141 F.3d at 529(concluding that allegations that a school board failed to recognize a student’s
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disability based on test scores were insufficient to state a claim under § 504).
Accordingly, the district court erred in analyzing this claim as merely a FAPE
violation under the IDEA.
IV
Having concluded that J.S. has stated a claim of intentional discrimination,
we must next determine whether the School Board can be held liable for such
discrimination under Title II and § 504. We have held that it is appropriate to look
to Title IX case law for guidance in examining discriminatory intent under § 504.
See Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 347 (11th Cir. 2012).
Under Title IX (and, by extension, Title II and § 504), a plaintiff may establish
intentional discrimination by showing deliberate indifference. See id. at 347–48.
“Deliberate indifference is an exacting standard; school administrators will only be
deemed deliberately indifferent if their response . . . or lack thereof is clearly
unreasonable in light of the known circumstances.” Doe v. Sch. Bd. of Broward
Cty., Fla., 604 F.3d 1248, 1259 (11th Cir. 2010) (internal quotation marks and
citation omitted). We may, on a motion for summary judgment, determine that a
response was not “clearly unreasonable” as a matter of law. See Davis v. Monroe
Cty. Bd. of Educ., 526 U.S. 629, 649 (1999).
Title IX is “predicated upon notice to an ‘appropriate person’ and an
opportunity to rectify any violation.” Gebser v. Lago Vista Indep. Sch. Dist., 524
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U.S. 274, 290 (1998). So, “[f]or an organization to be liable for Title IX purposes,
[a plaintiff must show] the deliberate indifference of ‘an official who at a minimum
has authority to address the alleged discrimination and to institute corrective
measures on the organization’s behalf and who has actual knowledge of
discrimination in the organization’s programs and fails adequately to respond.’”
Liese, 701 F.3d at 349 (alterations adopted) (quoting Gebser, 524 U.S. at 290).
“[T]he ultimate question of who is an appropriate person is necessarily a
fact-based inquiry because officials’ roles vary among school districts.” Broward
Cty., 604 F.3d at 1256 (internal quotation marks and citation omitted). “An
‘appropriate person’ . . . is, at a minimum, an official of the recipient entity with
authority to take corrective action to end the discrimination.” Gebser, 524 U.S. at
290. “[T]he official with notice . . . must be ‘high enough up the
chain-of-command that his [or her] acts constitute an official decision by the
school district itself not to remedy the misconduct.’” Broward Cty., 604 F.3d at
1255 (quoting Floyd v. Waiters, 171 F.3d 1264, 1264 (11th Cir. 1998)).
J.S. argues that Principal Smith, Ms. Brown (his special education teacher),
Ms. Boatright (his regular education teacher), and Coach Barton and
Coach Sunday (both physical education teachers), were all appropriate persons
who had the authority to take measures to correct Mr. Faircloth’s conduct, and that
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they were each deliberately indifferent to actual notice that Mr. Faircloth was
removing J.S. from his regular classroom. We address each individual in turn.
A
J.S. first argues that Principal Smith was an appropriate person who failed to
adequately respond to actual notice that Mr. Faircloth was bringing him into the
weight room regularly. In Broward County, we held that a principal was an
“appropriate person” to receive Title IX actual notice because that principal, as
“the highest-ranking school official on site” at the school, was “equipped with
many . . . means of deterring or stopping sexual harassment of students, such as
admonishing the teacher, conducting a thorough preliminary investigation, swiftly
reporting the abuse, and monitoring the teacher’s behavior.” 604 F.3d at 1255,
1257. Indeed, we noted that the Supreme Court’s decisions in Gebser and Davis
“appeared to presume that the principal could be an appropriate person” and that
“the majority of our sister circuits addressing the issue have interpreted [those]
opinions as standing for the proposition that at least in some circumstances, if not
generally, a principal enjoys ample authority to ‘take corrective measures’ in
response to allegations of teacher or student . . . harassment.” Id. at 1256.
Principal Smith specifically testified that she was Mr. Faircloth’s immediate
supervisor. See Smith Dep. at 109. A Houston County high school principal has
“direct and primary responsibility for his/her school and [he/she] serves as the
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administrative and supervisory head of the school.” See High School Principal Job
Description, D.E. 28-25 at 5. The principal is tasked with “[s]upervis[ing] assigned
personnel, conduct[ing] annual performance appraisals, and mak[ing]
recommendations for appropriate employment actions,” as well as
“[i]mplement[ing] school board policy, state statutes, and federal regulations.” Id.
at 3. Given our precedent generally recognizing principals as appropriate persons,
as well as Principal Smith’s responsibilities in supervising staff and implementing
regulations, the record establishes, at minimum, that a reasonable jury could
determine that Principal Smith, as the “highest-ranking official” at Wicksburg, was
an appropriate person with authority to address the alleged discrimination.
As for the failure to adequately respond to actual notice of discrimination,
Principal Smith testified that she was informed by Ms. Brown only once, in
approximately October of 2011, that Mr. Faircloth was taking J.S. to the weight
room. She stated that she told Mr. Faircloth that she would “rather him not take
[J.S.] back to that weight room” and that she was never subsequently informed that
he had taken J.S. back to the weight room. See Smith Dep. at 72. But
Principal Smith did not follow up to see if Mr. Faircloth followed her instructions.
She acknowledged, moreover, that she did not inform J.S.’ parents that he had been
removed from the classroom, and did not ask J.S. directly what was happening
while they were in the weight room because she believed Mr. Faircloth and his
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explanation seemed reasonable. Ms. Brown, however, testified that when she later
learned Mr. Faircloth was continuing to take J.S. into the weight room, she again
told Principal Smith. The record does not show that Principal Smith took any
action following the second notice, though she maintains that she was informed of
Mr. Faircloth’s behavior only that one time in October of 2011.
Viewing the evidence in the light most favorable to J.S., a jury could find
that Principal Smith was deliberately indifferent in failing to follow up with
Mr. Faircloth, or speak to J.S. or his parents after her discussion with
Mr. Faircloth, and in failing to take adequate action when she was informed a
second time that J.S. was being removed from the classroom. There is a genuine
issue of material fact as to whether Principal Smith had actual knowledge and
whether her response was clearly unreasonable, i.e., deliberately indifferent.
B
J.S next argues that both Ms. Brown and Ms. Boatright had the authority to
take corrective measures in response to his removal from the classroom, and that
they responded to Mr. Faircloth’s actions in a manner that was clearly
unreasonable. We agree.
1
We have yet to determine whether a schoolteacher can serve as an
appropriate person with authority to take corrective measures so as to constitute an
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official decision from the school district itself. See, e.g., Hawkins v. Sarasota Cty.
Sch. Bd., 322 F.3d 1279, 1287–88 (11th Cir. 2003) (declining to address issue of
notice and deliberate indifference based on teacher’s actions and resting decision
instead on denial of access issue). Based on the record before us, we conclude that
a teacher can serve as an appropriate person and an issue of fact remains as to
whether Ms. Brown and Ms. Boatright were appropriate persons.
In Houston County, both regular and special education teachers are
responsible for “instruct[ing] and supervis[ing] the work of volunteers and aides
when assigned.” See Elementary Teacher Job Description, D.E. 28-30 at 6; Special
Education Teacher Job Description, D.E. 28-11 at 2. Although Mr. Faircloth was
assigned specifically to J.S., and not to a particular classroom, this fact, viewed in
the light most favorable to J.S., supports the argument that the teachers held some
supervisory authority over Mr. Faircloth as an aide. See Denise Whitfield 6-29-15
Dep., D.E. 28-29 at 31–32. Both teachers were also expected to “assist in [the]
enforcement of school rules, administrative regulations[,] and [school board]
policy.” Elementary Teacher Job Description at 6; Special Education Teacher Job
Description at 2.
The School Board’s expert and special education director, Ms. Whitfield,
testified that Ms. Brown was not “totally responsible” for Mr. Faircloth’s
supervision, but that she was responsible in part as J.S.’ case manager, who had to
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ensure the implementation of the IEP. See Whitfield Dep. at 32–33. See also Smith
Dep. at 109–10, 115–16 (explaining that Ms. Brown did not have any immediate
supervisory authority over Mr. Faircloth, but that she was responsible for the
implementation, compliance, and enforcement of J.S.’ IEPs, including informing
school personnel, such as Mr. Faircloth, of their responsibilities under the IEP).
Ms. Whitfield also said that Ms. Brown “could have told” Mr. Faircloth that J.S.
was not supposed to be in the weight room and that she “had the authority to say
whatever she wanted to say.” Id. at 34–35. When asked whether Mr. Faircloth
would have had to comply with Ms. Brown’s instruction or admonition,
Ms. Whitfield answered that “he should have complied if she told him that she
didn’t want him to take [J.S.] to the weight room [and that] if he didn’t [comply]
she could have gone to her supervisor.” Id. at 36–37.
As for Ms. Boatright, Ms. Whitfield testified that Mr. Faircloth “should
have” been required to follow an instruction by Ms. Boatright to not take J.S. to the
weight room, if one had been given. See id. at 49. When asked whether
Ms. Boatright had the authority by virtue of her position as J.S.’ teacher to give
such an instruction to Mr. Faircloth, Ms. Whitfield responded “[c]ertainly, I think
she could have said that, yes.” Id. at 49–50.
Viewing this evidence in the light most favorable to J.S., a reasonable jury
could find that Ms. Boatright and Ms. Brown had authority to take corrective
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action to stop Mr. Faircloth from removing J.S. from the classroom. In Broward
County, we rejected the notion that “final employment decisions such as
suspending, terminating, or reassigning an offending [individual] [are] the only
corrective measures giving an official the power to remedy” harassment under
Title IX. 604 F.3d at 1257. Instead, we recognized that there are “many other
means of deterring or stopping [ ] harassment of students, such as admonishing the
[individual], conducting a thorough preliminary investigation, swiftly reporting the
abuse, and monitoring the [individual’s] behavior.” Id.A reasonable jury could find that Ms. Brown and Ms. Boatright both held
some sort of supervisory authority over Mr. Faircloth given their job descriptions
and their designation as persons responsible for the implementation and
enforcement of J.S.’ IEP, and that they had the ability and authority to take such
actions as those contemplated in Broward County. J.S., accompanied by
Mr. Faircloth, was to spend approximately 80 percent of his time in
Ms. Boatright’s classroom, leaving her arguably the best-positioned school official
to take action to remedy J.S.’ removal from her classroom. And although
Ms. Brown stated that she did not believe that it was her job to supervise
Mr. Faircloth and that she could not have reprimanded or corrected him, the
testimony of Ms. Whitfield and Ms. Smith suggests otherwise, particularly given
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her role as J.S.’ case manager and the individual responsible for informing school
personnel of their responsibilities under the IEP.
2
The record also contains sufficient evidence from which a reasonable jury
could find that both Ms. Brown and Ms. Boatright had knowledge of J.S.’ removal
from the classroom and that their respective responses were deliberately indifferent
under the circumstances.
Although Mr. Faircloth did not usually accompany J.S. to her classroom,
Ms. Brown testified that Ms. Boatright told her that J.S. and Mr. Faircloth were not
in her classroom when they were supposed to be. See Brown Dep. at 22–23.
Ms. Brown asserts that she told Principal Smith at least twice that J.S. was being
removed from the classroom, but there remains an issue of fact as to whether
Ms. Brown spoke with Principal Smith again after learning from Coach Barton,
Coach Sunday, and Angela Brockman, another special education teacher, that it
was an “ongoing habit.” See Id. at 30–31; Smith Dep. at 72 (denying that
Ms. Brown informed her a second time that Mr. Faircloth was continuing to bring
J.S. to the weight room). Ms. Brown testified that she spoke with Mr. Faircloth and
informed him that taking J.S. to the weight room was against his IEP, but that she
did not speak with him again because she did not feel it was her responsibility to
reprimand him. See Brown Dep. at 26, 30–32, 80–81. Moreover, Ms. Brown did
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not ask J.S. what was happening in the weight room and, although she was in
“constant,” daily contact with J.S.’ mother, she did not inform J.S.’ parents of what
was happening. See id. at 33–34, 118–19. Given these factual disputes and her
apparent failure to follow up with Mr. Faircloth or speak with J.S. or his parents,
there is sufficient evidence from which a reasonable jury could conclude that
Ms. Brown’s actions were clearly unreasonable.
As for Ms. Boatright, she testified that J.S. and Mr. Faircloth were often “in
and out” of her classroom. See Boatright Dep. at 21–23. Although it is unclear
whether Ms. Boatright knew that Mr. Faircloth was taking J.S. to the weight room
specifically, see Boatright Dep. at 29, 43–44, 54, she knew J.S. was often not in
her classroom as required. According to Ms. Brown, she and Ms. Boatright had a
conversation about the fact that J.S. was not in Ms. Boatright’s classroom and
Ms. Boatright agreed that she should speak with Principal Smith because she was
responsible for teaching J.S. See Brown Dep. at 71–72. But Ms. Boatright did not
report J.S.’ removal from the classroom to Principal Smith. Nor did she ever ask
J.S. about what occurred when Mr. Faircloth took him out of the classroom, or
speak with Mr. Faircloth about it. See Boatright Dep. at 45–46, 85. Viewing the
evidence in the light most favorable to J.S., a reasonable jury could conclude that
Ms. Boatright had knowledge that J.S. was being removed from the classroom and
that she reacted in a manner that was clearly unreasonable under the circumstances.
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C
J.S. also argues that Coach Barton and Coach Sunday were appropriate
persons that could bind the school district, arguing that they “could have, at the
very least, tried to deter Mr. Faircloth from bringing J.S. . . . to the weight room”
and that they had authority to instruct Mr. Faircloth to return J.S. to his regular
classroom. See Br. of Appellant at 58. Unlike the classroom teachers, however, the
record does not contain sufficient evidence from which a reasonable jury could
conclude that Coach Barton and Coach Sunday had the authority to take corrective
actions to stop Mr. Faircloth.
Ms. Whitfield testified that the coaches had supervisory authority over
Mr. Faircloth “to the extent that they were providers of [J.S.’] IEP, and the services
in his IEP.” See Whitfield Dep. at 54. She also testified that either coach “could
have” told Mr. Faircloth to take J.S. back to his regular classroom, and that she
believed that—based on her “own personal ethical and moral principles”—
Mr. Faircloth “should have” complied with such instructions. Id. at 50–53. But J.S.
has not pointed to any evidence suggesting that physical education teachers and
coaches in the school district, like general and special education teachers,
maintained a supervisory role over assigned aides. Coach Barton, for his part,
testified that he was never told that he was responsible for communicating with
J.S.’ parents directly. See Barton Dep. at 78–79. And although each coach was
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listed on at least one of J.S.’ IEPs, J.S. has not presented evidence that they served
a supervisory role similar to, or with the same level of involvement as,
Ms. Boatright, the teacher responsible for 80 percent of J.S.’ school day, or
Ms. Brown, J.S.’ case manager.
We recognize that Coach Barton and Coach Sunday could have—and
indeed, likely should have—informed someone that they had frequently observed
Mr. Faircloth and J.S. in the weight room. But the record does not reflect that they
were “high enough up the chain-of-command” for their actions to “constitute an
official decision by the school district itself not to remedy the misconduct.”
Broward Cty., 604 F.3d at 1255 (quoting Floyd, 171 F.3d at 1264).
V
As for J.S.’ assertion that the School Board is liable for Mr. Faircloth’s
alleged verbal and physical abuse of J.S., we again borrow from Title IX deliberate
indifference case law to guide our analysis. See Liese, 701 F.3d at 347. Having
already concluded that there remains a genuine issue of fact as to whether
Principal Smith, Ms. Brown, and Ms. Boatright were appropriate persons with
actual notice of J.S.’ removal from his classroom and whose responses were
clearly unreasonable, we must determine whether the “substance of that actual
notice [was] sufficient to alert the school official of the possibility” of the verbal
and physical abuse. Broward Cty., 604 F.3d at 1254.
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J.S. argues that his removal from the classroom created the opportunity for
Mr. Faircloth to abuse him. In the Title IX context, we have held that “lesser
harassment may still provide actual notice of [ ] violent conduct, for it is the risk of
such conduct that the Title IX recipient has the duty to deter.” Id. at 1258. For
example, in Broward County, we held that knowledge of prior instances of sexual
harassment of two students by a teacher served as actual notice of the possibility of
that teacher’s sexual assault of another student. See id. at 1259. Similarly, in
Williams v. Board of Regents of University System of Georgia, 477 F.3d 1282(11th Cir. 2007), the prior groping of female employees by a college basketball
player was sufficient to allege actual notice of the possibility of a later violent
sexual assault that occurred in that player’s dorm room. See id. at 1294–95; id. at
1304–05 (Jordan, District Judge, concurring). In contrast, comments made to a
group of students during class did not serve as sufficient notice of the possibility of
a teacher’s sexual relationship with a student. See Gebser, 524 U.S. at 291–92. Nor
was there actual notice of potential sexual molestation based on prior allegations of
a teacher’s touching during a touch football game and perceived imminent
touching at a public water fountain. See Davis v. DeKalb Cty. Sch. Dist., 233 F.3d
1367, 1372–73 (11th Cir. 2000).
The record does not establish (or create a jury issue) that knowledge that
Mr. Faircloth was removing J.S. from his classroom and bringing him into the
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weight room would apprise his teachers or the principal of the possibility that
Mr. Faircloth was also abusing J.S. See Boatright Dep. at 51, 53–54, 60–61; Barton
Dep. at 26, 29, 40, 70, 84–85; Sunday Dep. at 33–34. At most, the facts
demonstrate that any school officials who could be deemed “appropriate persons”
were aware that Mr. Faircloth was inattentive, or even careless, with J.S. But,
similar to the incidental touching and inappropriate comments in Davis and
Gebser, no reasonable jury would find that this conduct alerted those school
officials to the possibility of abuse.
VI
There are genuine issues of fact as to whether the School Board was
deliberately indifferent to discrimination regarding J.S.’ removal from the
classroom, but there is insufficient evidence from which a reasonable jury could
conclude that the School Board had notice of the possibility of alleged verbal and
physical abuse against J.S. Accordingly, we affirm in part and reverse in part the
district court’s order granting summary judgment to the School Board, and remand
for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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