United States District Court, N.D. Alabama, Western Division
ROBIN and VICKY WALKER, as parents and next friends of REBECCA WALKER, Plaintiffs,
TUSCALOOSA COUNTY SCHOOL BOARD, et al., Defendants.
MEMORANDUM OF OPINION
Scott Coogler United States District Judge
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.
Rebecca Walker and The CrossingPoints Program
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
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.)
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.)
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.)
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.)
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.)
D.J.'s Disciplinary History and Defendants' Remedial
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.)
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
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.)
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.)
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.)
The Incident on March 10, 2015
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.)
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.)
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.)
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 ¶¶
officials also notified Patricia Powell at the County Board
of Rebecca's allegations. (Id. at ¶ 39.)
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
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.)
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
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).
Plaintiffs' Motion to Strike
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.
Defendants' Motions for Summary Judgment
Title IX Claims Against the City Board and County
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).
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).
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.
Actual Knowledge by an ...