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Walker v. Tuscaloosa County School Board

United States District Court, N.D. Alabama, Western Division

November 18, 2019

ROBIN and VICKY WALKER, as parents and next friends of REBECCA WALKER, Plaintiffs,
v.
TUSCALOOSA COUNTY SCHOOL BOARD, et al., Defendants.

          MEMORANDUM OF OPINION

          L. Scott Coogler United States District Judge

         Plaintiffs, Robin and Vicky Walker, have sued on behalf of their daughter, Rebecca Walker, claiming that she was sexually assaulted after her special education teachers left her unattended with another student. Before the Court are Defendants', Tuscaloosa County School Board (“the County Board”), Tuscaloosa City School Board (“the City Board”), and Amy Burnett and Amy Williamson (collectively “Defendants”), motions for summary judgment (docs. 63, 66, and 68) and Plaintiffs' motion to strike (doc. 79). The motions have been briefed and are ripe for review. For the reasons stated below, Defendants' motions for summary judgment (docs. 63, 66, and 68) are due to be granted in part and Plaintiffs' motion to strike (doc. 79) is due to be denied as moot.

         I. Background[1]

         A. Rebecca Walker and The CrossingPoints Program

         Rebecca Walker graduated from Hillcrest High School, a school in the Tuscaloosa County School System, in 2012. (Doc. 58. at ¶ 1.) Because of her Down Syndrome, she was a special education student while enrolled in the County School System. (Id. at ¶ 2.) When she graduated from high school, she applied for and was accepted into the CrossingPoints program (“CPP”). (Id. at ¶ 3.)

         CPP is a collaborative educational program between the University of Alabama (“UA”), the County Board, and the City Board. (Id. at ¶ 4.) It serves students with significant disabilities ages 18-21 years. (Id. at ¶ 5.) As part of CPP, students receive class room instruction on certain days, go to various jobs on certain days, and participate in recreational activities on other days. (Id. at ¶ 14.) As students near the completion of the program, they are taken to various local businesses in and around Tuscaloosa to submit job applications. (Id. at ¶ 15.)

         The City Board and County Board each provide resources for CPP. As part of the agreement between UA and the City Board, the City Board provides teachers and paraeducators for the program. (Id. at ¶ 7.) Defendants Amy Williamson and Amy Burnett are a special education teacher and a paraeducator, respectively. (Id. at ¶¶ 8-9.) They are both employed by the City Board and assigned to CPP. (Id.) Through another agreement between UA and the County Board, the County Board provides transportation to and from UA for CPP students who previously attended County schools. (Id. at 11.)

         The policies, procedures, and guidelines for CPP are chosen by CPP administrators, including Dr. Kagenda Matua and her team. (Defs' Ex. G at 29.) Representatives for the City Board and County Board both consult with CPP administrators in the development of CPP policies. (Defs' Ex. C at 17.) CPP administrators ultimately decide what policies will be implemented. (Defs' Ex. G at 32.) However, at least one City Board official is unaware of any instance in which a recommended policy change was rejected. (Id.)

         Prior to March 10, 2015, there were no policies at CPP with respect to whether teachers and paraeducators could leave students on school vans. (Defs' Ex. D at 125.) Further, CPP staff were not trained at the beginning of each school year on the prevention of student-on-student sexual harassment or assault. (Id. at 142.)

         However, neither City Board officials nor County Board officials ever recommended that CPP adopt such policies. (See Defs' Ex. G at 34 & Defs' Ex. F at 109.)

         B. D.J.'s Disciplinary History and Defendants' Remedial Measures

         D.J. was one of Rebecca's peers at CPP. (Doc. 58 at ¶ 17.) He suffers from an intellectual disability and had an IQ of 43 on or about March 10, 2015. (Id. at ¶ 19.) D.J.'s individualized education plan (“IEP”) for 2014-2015 stated that he would require transportation as a related service and would need bus assistance and adult support during transportation. (Pl's Ex. 6 at 172.) One of the individuals responsible for implementing D.J.'s IEP was Amy Williamson. (Pl's Ex. 1 at 294.)

         During the 2013-2014 school year, D.J. received numerous disciplinary write-ups for behavior while riding a County school bus that transported him between his home and CPP. (Doc. 58 at ¶ 40.) His behavior included acts such as yelling, tripping other students, and refusing to stay in his seat. (Pl's Ex. 12 at 329-36.) Defendant Williamson received each of D.J.'s disciplinary referrals either on the same day or the next day. (Defs' Ex. L at 70.) D.J.'s behavior resulted in his suspension from the County bus during the 2013-2014 school year. (Pl's Ex. 1 at 354.)

         Although D.J.'s behavior on the County bus improved at the beginning of the 2014-2015 school year, he received several write-ups during December 2014. (Pl's Ex. 12 at 326-28.) These write-ups generally resulted from the same disruptive behavior that characterized the 2013-2014 school year. (See id.) However, on December 3, 2014, D.J. received another write-up when he commented on the appearance of one student's young female babysitter and noted “what he would do with her.” (Id. at 326.) D.J. continued to receive disciplinary write-ups for his behavior on the bus as late as March 9, 2015. (Id. at 325.)

         In December 2014 and January 2015, Williamson and fellow CPP teacher Olivia Robinson twice met with D.J.'s mother to discuss his behavior on the bus and what could be done to correct it. (Pl's Ex. 1 at 339, 341-44.) As D.J.'s behavioral issues continued, Robinson notified Patricia Powell, a County Board official. (Id. at 339, 345, 352.) Specifically, Robinson informed Powell of D.J.'s general behavioral issues, making no express reference to the lewd comment made on December 3, 2014. (Id.)

         Powell forwarded Robinson's concerns and a draft student behavioral contract to Lisa Hembree, the County Board's behavioral specialist. (Id.) Robinson contacted Hembree and explained D.J.'s disciplinary issues. (Id. at 354.) Again, Robinson did not reference the lewd comment made on December 3, 2014. (Id.) Hembree conferred with Robinson and helped develop the student behavioral contract to address D.J.'s behavior. (Id. at 358.) Defendant Williamson also took part in this process. (Defs' Ex. L at 88.) However, the contract was not completed and signed by all parties until March 10, 2015. (Pl's Ex. 1 at 359.)

         C. The Incident on March 10, 2015

         On March 10, 2015, Defendants Williamson and Burnett left campus to take Rebecca, D.J. and two other students to submit job applications at various local businesses. (Doc. 58 at ¶ 18.) The students were transported on a CPP van owned by the University of Alabama. (Id. at ¶ 20.) The group went first to Lowe's in Northport. (Id. at ¶ 21.) The van was parked in the front of the parking lot, near the front door. (Id. at ¶ 22.) Because Rebecca and D.J. did not plan to apply for jobs at Lowe's, they remained in the van while Williamson and Burnett escorted the other two students into the store. (Id. at ¶¶ 23-24.)

         The plan was for Williamson to assist a student in filling out an application at one kiosk while Burnett assisted the other student in starting an application at the other kiosk before returning to the van. (Id. at ¶ 25.) Upon discovering that the store had only one kiosk, Defendant Burnett and one of the students immediately returned to the van. (Id. at ¶¶ 26-27.) In total, Burnett was away from the van for less than five minutes. (Defs' Ex. D at 124.)

         Upon returning to the van, Burnett noticed that Rebecca's face was red. (Doc. 58 at ¶ 28.) At Burnett's questioning, Rebecca revealed that D.J. had touched her breasts and had touched her between her legs. (Id. at ¶¶ 29-30.) Burnett contacted Williamson, and the pair chose to return to campus to follow up on Rebecca's allegations. (Id. at ¶ 31 & ¶ 35.)

         Upon returning to campus, Williamson notified Rebecca's mother of the incident. (Id. at ¶ 36.) Rebecca's mother then took Rebecca to DCH Regional Medical Center to be examined by a physician. (Id. at ¶¶ 37-38.)

         CPP officials also notified Patricia Powell at the County Board of Rebecca's allegations. (Id. at ¶ 39.)

         D. The Aftermath

         Following the alleged incident on March 10, 2015, D.J. was suspended from CPP pending a meeting with his IEP team. (Id. at ¶ 42.) An IEP team meeting was held on March 23, 2015, at which time a manifestation determination review was conducted and a determination was reached that D.J. had committed a Class III offense. (Id. at ¶ 43.) He was placed on homebound services for the remainder of the year, and he was not allowed to participate in CPP activities such as the spring dance and graduation. (Id. at ¶¶ 43-44.)

         Rebecca Walker has not seen D.J. since the March 10, 2015 incident. (Id. at ¶ 45.) She returned to CPP the following day and appeared in good spirits. (Defs' Ex. H at 174-75.) Rebecca continued taking part in CPP activities, attending both the spring dance and graduation. (Doc. 58 at ¶ 48.) She completed the program and received a certificate. (Id. at ¶ 47.) Since the incident, however, Rebecca has experienced emotional distress, including nightmares, the need for counseling, and a feeling of anxiety upon seeing a van that resembles a CPP van. (Defs' Ex. K at 68, 70 & Pl's Ex. 14 at 12-14.)

         II. Standard

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine if “the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004). A genuine dispute as to a material fact exists “if the nonmoving party has produced evidence such that a reasonable factfinder could return a verdict in its favor.” Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge should not weigh the evidence, but should determine whether there are any genuine issues of fact that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         In considering a motion for summary judgment, trial courts must give deference to the non-moving party by “view[ing] the materials presented and all factual inferences in the light most favorable to the nonmoving party.” Animal Legal Def. Fund v. U.S. Dep't of Agric., 789 F.3d 1206, 1213-14 (11th Cir. 2015) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However, “unsubstantiated assertions alone are not enough to withstand a motion for summary judgment.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). Conclusory allegations and “mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment.” Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir. 2016) (per curiam) (quoting Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004)). In making a motion for summary judgment, “the moving party has the burden of either negating an essential element of the nonmoving party's case or showing that there is no evidence to prove a fact necessary to the nonmoving party's case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013). Although the trial courts must use caution when granting motions for summary judgment, “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

         III. Discussion

         A. Plaintiffs' Motion to Strike

         Plaintiff moves to strike certain evidentiary materials submitted by Defendants in support of their motions for summary judgment. (Doc. 79.) The materials to which Plaintiffs object are the affidavit of Defendant Amy Williamson (Def's Ex. M), the affidavit of Defendant Amy Burnett (Def's Ex. N), and the affidavit of Bruce Prescott (Def's Ex. O). In evaluating Defendants' motions for summary judgment, the Court does not rely upon those evidentiary submissions. Accordingly, Plaintiffs' motion to strike is due to be denied as moot.

         B. Defendants' Motions for Summary Judgment

         1. Title IX Claims Against the City Board and County Board

         Title IX states, in pertinent part: “No person . . . 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(a). Student-on-student sexual harassment, “if sufficiently severe, can . . . rise to the level of ‘discrimination' actionable under the statute.” Davis, through next friend LaShonda D. v. Monroe Cty Bd. of Educ., 526 U.S. 629, 630-31 (1999).

         “A plaintiff seeking recovery for a violation of Title IX based on student-on-student harassment must prove four elements.” Williams v. Bd. of Regents of Univ. of Ga., 477 F.3d 1282, 1293 (11th Cir. 2007). First, the defendant must be a Title IX funding recipient. Id. Second, “an ‘appropriate person' must have actual knowledge of discrimination or harassment the plaintiff alleges occurred.” Id. (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998)). Next, the defendant must have acted with deliberate indifference. Williams, 477 F.3d at 1293. Finally, “the discrimination must be ‘so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit.'” Id. (quoting Davis, 526 U.S. at 633).

         The parties do not dispute that both the City Board and the County Board are Title IX funding recipients. However, as explained below, Plaintiffs have failed to show a genuine dispute as to the remaining elements of their Title IX claim.

         a. Actual Knowledge by an ...


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