7-9-12 Georgia Court Decision

Transcription

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112 LRP 32447 David and Tina LONG, Individually, and as Natural Parents ofTyler Lee LONG, Deceased, Plaintiffs, v. MURRAY COUNTY SCHOOL DISTRICT and Gina LINDER, Capacity as Principal of Murray County High School, Defendants
U.S. District Court, N orthem District ofGeorgia
4:10-CV-00015-in..M
May21, 2012
Related Index Numbers
10.050 Harassment
405.050 Harassment/Retaliation
Case Summary
While a Georgia district should have done more to protect a student with Asperger syndrome who committed
suicide, the District Comt fumd insufficient evidence ofde1iberate indifference. Finding that the district
responded to the comp1aints it received in a mamer that was not clearly unreasonable, and that it neither caused
additional harassment nor made an official decision to ignore it, the comt dismissed the parents' Section 504
case. The comt noted that.there was little question that the student was severely harassed based on his disability
and that the district should have done more to stop it and prevent :futw-e incidents. However, applying the
analysis articu1ated in Davis v. Monroe County 'Board ofEducation, 103 LRP 20059, 526 U.S. 629 (U.S.
1999), the District Comt fumd insufficient evidence that the district de1iberately ignored specific comp1aints. In
some cases, it disciplined the perpetrators. It also developed a sarety p1an tQat allowed the student to avoid
crowds in the hallways and to sit near the bus driver. The cmnt also determined that the district's decision on at
least two occasions to meet with the perpetrators and victim together was not clearly mreasonable. In addition, it
pointed out that there were numerous cameras and teachers monitoring the hallways. Although the parents '
chimed that the student continued to be harassed despite those e:ffi>rts, there was no evidence that any single
harasser repeated his conduct once the district addressed it. The parents pointed out that the day after the
student's suicide, students wore nooses to school and wrote messages in the bathroom stating ''it was your own
fuuh" and ''we will not miss you" They argued those actions were an indication ofthe cuhure ofharassment and
ofthe district's firilure to address it. The court pointed out that although the district never hekl any assemblies to
discuss bullying and harassment, it took several steps to address the school climate. First, its code ofconduct
contained ananti-bullyingpolicythat staffmembers were expected to read. It also conducted a program in which
teacherS met with small groups ofstudents to instruct them on peer re1ationships and review the code ofconduct
Finally, it participated in a school tolerance program, and implemented a program aimed at improving overall
student behavior. The .court granted the district's motion fur summarYjudgrrent.
Judge I Administrative Officer
HAROLD L. MURPHY
Full Text
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Order
This case is befure the Comt on Defundants' Motion fur Sunnnary Judgment.
I. Backgrmmd
Keeping in mind that when deciding a motion fur summaryjudgment, the Comt nmst view the evidence and all
factual infere~es in the light most favorable to the party opposing the motion, the Comt provides the fullowing
statement offucts. See Optimum Techs., Inc. v. Henkel Consumer Adhesives. Inc., 496 F.3d 1231, 1241
(11th Cir. 2007) (observing that, in comection with summaryjudgment, comt nmst review an filets and
inferences in light most favorable to non-moving party). This statement does not represent actual findings of met.
In re Celotex Corp., 487 F.3d 1320, 1328 (11th Cir. 2007). Instead, the Comt has provided the statement
simply to p1ace the Comt's legal analysis in the context ofthis particu1ar case or controversy.
A. Factual Background1
1. Parties
P1aintifiS David and Tina Long (''PlaintiflS'~ are the natural parents ofTyler Lee Long ('Tyler'~ who died by
suicide on October 17, 2009 at his home. (De:fS.' Statement ofUndisput:ed Material Facts ('DSMF'~ ~ 1; P1s.'
Resp. DSMF (''PRDSMF'~ ~ 1; P1s.' Anl. Compl W 1, 30.i Tyler was bomonApri125, 1992 and was
diagnosed withAsperger's Syndrome ("Asperger's'~ in2005. 3 (Am Compl W9-10.)Priorto his death, Tyler
was a student at Mmray County High School (''MCHS'~ in Chatsworth, Georgia. (Id. ~ 2.)
Derendant Murray Cmmty School District (''MCSD'~ is the entity that operates MCHS. (Am. Compl ~ 2.)
Derendant Gina Linder was first assigned to the position ofPrincipal ofMCHS in July 2007 and remains the
principal as ofthe date ofthis Order. (DSMF ~ 2; PRDSMF ~ 2; Dep. ofGina Linder at 5,
9l
2. Tyler'S Death on October 17, 2009
On Friday, October 16, 2009; Tyler came home fromschoo\ irmnediatelywentto work at Captain D's, and
retmned home from work armmd 10:00 p.m (DSMF ~ 5; PRDSMF ~ 5; Dep. ofTina Long at 158; Dep. of
Te. L. at 67.) Tyler spoke to his mother (''Ms. Long'~ at around 11 :00 p.m and to his :father ('Mr. Long'~ at
armmd 12:00 a.m, when the smoke aJarm went off in P1a:intifiS' house. (DSMF ~ 6; T. Long Dep. at 162; Dep.
ofDavid Long at 119-20.) Ms; Long testified that Tyler did not seem more dejected or depressed than. usual
(T. Long. Dep. at 162.) At around 6:00a.m on October 17,2009, Mr. Longfumd Tyler hanging by a belt tied
to a shelf in Tyler's c1oset, dead. (DSMF ~ 7; PRDSMF ~ 7; Dep~ ofJim Whitehead Ex. 1.)
Tyler left two final conmmications. (DSMF ~ 8; PRDSMF ~ 8; Whitehead Dep. Ex. 1.) Shortly after midnight,
Tyler twice attempted to can N .F a friend from his Jtmior Reserve Officer Training Corps ("JROTC I~ program
atMCHS, but did not get an-answer. (WhiteheadDep. Ex. 1.) At 1:12 a.m on October 17,2009, Tyler sent
N .F. a text message which read:
.,s
[N.] by the time u read this message I have killed myseJf Manu were a good friend and ill miss u Ten everyone
in ro 4 me goodbye my friend.
(Id.y6 Tyler a1so left a note to his fiuni1y which stated:
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Dear Fannly, Ifyou are reading this I am DEAD. I don't want to live any longer with this burden I have. I don't have a
supporting family or friends fur that matter. You think I am worthless and pathetic. All I wanted was acceptance
and kindness, but no I didn't get love. Maybe I'll see you in the afterlifu or not. I want to end this pain I have and
to live in eternal happiness. I hate myse1fbecause I don't make everyone happy. Tr., I love you because we
share a battle ofdisabilities. Te., You will be great some day. Tina, You[r] personality is what helped me. David,
I looked up to you for all my lifu and I love you the most. This World will be a better place without me.
Sincerely,
Tyler Lee Long
1992-2009
(!d.)
PlaintiflS aDege that Defundants' fuilme to intervene, investigate, correct, or train their employees to adequately
protect Tyler from bullying was the sole or a substantial contributing cause ofTyler's decision to take his own Jifu.
(Am Compl ~ 36.)
3. Fallof2009 --11th Grade
a. At Home
One evening in September 2009, shortly after school started, Mr. Long came into Tyler's room and saw Tyler
hanging up his behs in an unusual way. (D. Long Dep. at 181.) This incident led to a discussion about suicide
with Tyler and betweenPJaintifiS. (ld.; T. Long Dep. at 264-65.) When Mr. Long expressed concern about
Tyler committing suicide, Ms. Long responded that Tyler would not conmit suicide because ''he loves us."
(DSMF ~·Is; T. Long Dep. at 266.)
Arm.md the same time, Mr. Long discovered that Tyler had been wearing aduh diapers when he was at horne.
(DSMF ~ 16; T. LongDep. 267-58; D. LongDep. 187-88.) Tyler was urinating in the diapers, a behavior
which aJanned PlaintifiS and prompted them to take Tyler to a psychologist. (ld.J'
On September 25, 2009, Plaintiffi; took Tyler to the psychologist George Karasievich, Psy. D. for an
assessment. (DSMF ~ 17; T~ Long. Dep. at 267.)8 Dr. Karasievichprepared a written report based on
infonnation obtained from PlaintifiS and Tyler and handwritten notes taken during the assessment. (DSMF ~ 18;
Dep. ofGeorge Karasievich at 16, 19, Ex. 2.) Dr. Karasievich's notes do not include any entry indicating that
Tyler or PJaintiffi; tokl Dr. Karasievich about Tyler messing with belts or about any discussion with Tyler about
suicide. (DSMF ~ 21; KarasievichDep. Ex. 2.) Based on his meeting with Tyler, Dr. Karasievichconcluded that
Tyler was not suicidal (DSMF ~ 22; Karasievich Dep. at 48.) Tyler was scheduled fur a fuDowup appointment
with Dr. Karasievich on Monday, October 12, 2009, but Tyler did not show up, cance~ or reschedule the
appointment. (DSMF ~~ 33-34; KarasievichDep. ~t 12-13, Ex.2.)
On September 26, 2009, Tyler wrecked his car and was cited fur fui1ure to yiekl. (DSMF ~ 29; DefS.' Mot.
SlDIJ[Il J. Ex. E.) On Sunday, September 27, 2009, while Tyler was working at Captain D's, he spoke with
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Kevin Tackett, the lead special education teacher at MCHS and Tyler's special education :rmnager. He told Mr.
Tackett that, ''my m>ther is going to kill me ... I was driving in the rain and I wrecked my car and she says the
State is going to take my license away." (DSMF ~ 30; Dep. ofKevin Tackett at 81-82.) Mr. Tackett told Tyler
to come see him the next day, and they met with the driver's education teacher, who assured Tyler that he would
:riot lose his license. (DSMF W31-32; Tackett Dep. at 81-82.)9
P1a:intifiS did not infurm MCHS that Tyler had been taken to a psychohgist fur a mental health evaluation, that
P1aintifiS had specific concerns that Tyler might commit suicide, that Tyler had been wearing adult diapers at
home, or that Tyler was in any acute psychological distress. (DSMF ~ 36; T. Long Dep. at 266; D. Long Dep.
at 184, 190; Aff ofGina Linder~ 9.)
b. MCHS -- First Semester 11th Grade
Between September 14,2009 and October 16,2009, the onJyconmnmication betweenP1aintiflS and school
officials concerned the decision to remove Tyler from advanced courses. (DSMF ~ 47; Aff ofPhillip Greeson~
9; Linder Aff ~ 9; Aft: ofKevin Tackett~ 9; Aff ofChris Thornbury~ 12.)10
On October 16, 2009, Tyler told H.P., a student at MCHS and one ofTyler's friends, that he was upset and
thanked her fur being his :friend because not everyone wanted to be his friend. (DSMF ~ 49; Aft: ofH.P. ~ 7.)
Tr. L. testified that Tyler had a girlfriend, S.P., at the beginning ofeleventh grade, but that he had broken up with
S.P. prior to his suicide. (Tr. L. Dep. at 59.) When Dr. Karasievichasked ifTyler had a girlfriend, Tyler
answered, ''not at the m>ment." (Karasievich Dep. at 37.)
After Tyler's death, two students, J.R and C.L., reported to Tyler's counsehr, Julie Ga11man, that A.H. ''bullied"
Tyler in his guitar c1ass on October 15, 2009 and October 16, 2009 --the two days prior to Tyler's death. (Pis.'
Statement ofMaterialFacts (''PSMF'~ W44, 59, 86-87; Dep. ofJ.R at 8-13; Dep. ofJulie Ga11manat78-79,
81 (stating that two students who p1ayed guitar, C.L. and J.R, told her that Tyler had been ''bullied'~.) J.R, a
student in Tyler's guitar class, testified that A.H. tamted Tyler and pretended to take his guitar away. (J.R Dep.
at 9-10.) J.R explained that ''tamted" rreant "[j]ustkind ofdancing around him and not-- not poking or hitting
or anything like that, but just ... kind oflike a little bit excessive jocularity .... " (Id. at 10.) According to J.R, it
appeared that the incidents upset Tyler. (Id. ·at 11.) On both days, the taunting caused J.R and two ofhis
c1assmates to go over to the other side ofthe classroom and tellA.H. to stop, which he did ''innnediately." (A.H.
Dep. at 13.)
The guitar teacher, Mr. Weaver, did not intervene in either incident. (PSMF ~51; J.R Dep.at 14.)11 J.R did
not in:n:rediately report the incident to Mr. Weaver or to school officials, and Tyler did not tell his mother or
siblings that he had been mistreated by A.H. in guitar class. (PSMF W58-59; Aff ofJ.R at 22; Tackett Dep. at
106; Te. L. Dep. at71; T. LongDep. at 102-108.)12
M.B. testified that people "cuss[ed]" at Tyler during his freshman, sophomore, and junior years. (PSMF ~ 8;
Dep. ofM.B. at 30, 35.) M.B., however, could not remember a specific date or identifY any specific o:Oender,
and did not report the aDeged bullying to any teacher or school official (De:IS. Resp. PSMF ("DRPSMF'~ ~ 8;
M.B. Dep. at 36.)13
A.S. testified that, during eleventh grade, students knocked Tyler's books out ofhis hands as he was walking
down the hallway and pushed him into a desk. (PSMF W 10, 43; Dep. ofA.S. at 45-47, 49-50.) A.S. identified
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three students that were involved and reported the incident to Ms. Gibson, an English teacher at MCHS, but not
to any administrator. (A.S. Dep. at 46-47.) A.S. a1so reported that, during eleventh grade, another student spit in
Tyler's food and pushed him in the back ofthe head. (PSMF ~ 40; A.S. Dep. at 8, 41.) A.S. did not know the
name ofthe perpetrator and did not report the incident to any teacher or. administrator. (Id. at 42, 45.)
K.H. testified that, when she was in e1eventh grade U.S. History c1ass with Ty1er, she.heard students refer to
Tyler as "gay" two or three times. (DSMF ~ 302; PRDSMF ~ 302; K.H. Aff ~ 4.). K.H. testified that the
teacher did not hear those remarks and, to her knowledge, no one reported these incidents to any teacher,
administrator, or school cmmselor. (Id.)
M.B. testified that, during eleventh grade, T.U. ''would wa1k up to [Tyler], bump him with his shoukler, cuss him
out, call him stupid, call him a retard, push his books out ofhis hands, and when Tyler gets down to pick them
up, kicks him." (M.B. Dep. at 30.) The incident was a one-time occw:rence, no teacher or administrator
observed the incident, and M.B. did not report the incident to any teacher or administrator. (Id. at 31.)
M.B. a1so testified that, during e1eventh grade, a student ca11ed Ty1er names and pushed him out ofhis chair in
Ms. Meade's Spanish c1ass. (PSMF ~~ 20, 25; M.B. Dep. at 27-28.) No teacher or administrator observed the
incident, and M.B. did not report the incident to any teacher or administrator. (M.B. Dep. at 28.) In addition, the
evidence shows that M.B. and Tyler were never in the same Spanish c1ass. (DSMF ~ 308; A[ ofPhillip
Greeson~ 11, Exs. E, F.)
M.T.M. testified that, during e1eventh grade, S.W. bullied Tyler in the bathroom at MCHS. (PSMF ~ 36; Dep.
ofM.T.M. at 13.) M.T.M. provided no specific details ofthe incident, no teachers or administrators observed
the incident, and M.T.M. did not report the incident to any teacher or administrator. (PRDSMF ~ 36; M. T.M.
Dep. at 13, 18-19.)
After Ty1er's suicide, students wrote the words ''we will not miss you" and "it was your own fuuh" on the walls of
MCHS. (PSMF ~53; DRPSMF ~53 (arguing that incidents that occurred after Ty1er's death are not relevant to
Motion); Dep. ofC.H. at 14.)14 In addition, a hangman's noose was drawn on one ofthe walls ofthe school,
and students wore nooses around their necks to school (PSMF ~,54-55; C.H. Dep. at 14-15, 43.)
During the full semester ofTyler's eleventh grade year, neither P1aintif:IS nor Ty1er reported any incident of
bullying or mistreatment to any administrator or other official at MCHS. (DSMF ~ 68; PRDSMF ~ 68 (arguing
that school was already on notice that Tyler wa~ subject to bullying due to his Asperger' s condition); Linder A:ff
~ 9; Thornbury A:ff, 11; GreesonA:ff ~ 10; Tackett A[~ 3.) In addition, during Ty1er's e1eventh grade year,
no student made a report to any administrator or other official-- including Defendant Linder -- alleging,
discussing, or suggesting that students bullied or mistreated Ty1er. (DSMF ~ 69; J.R Aff ~ 22; A.S. Dep. at 42;
·
A.P. Dep. at20; M.B. Dep. at30, 37-39; Thornbury Aft:~ 11.)15
4. Murray County School District Policies, Ru1es, Practices, and Procedures Re1ated to Student Conduct and
Students With Disabilities and Bullying
a. The Code ofConduct
The MCSD Code ofStudent Conduct and Discipline Prqcedures ("Code ofConduct'') applicable from the
2007-2008 school year through the 2009-2010 school year prohibited bullying, which Georgia Jaw defines as:
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(1) Any willful attempt or threat to inflict iqjmy on another person, when accompanied by an apparent present
ability to do so;
(2) ~intentional dispJay offurce such as would give the victim reason to rear or expect inmediate bodily
harm; or
(3) ~intentional written, verba], or physical act, which a reasonable person would perceive as being intended
to threaten, harass, or intimidate, that:
(A} Causes another person substairtial physical harm within the meaning ofCode Section 16-5-23.1 or visib1e
bodily harm as such term is defined in Code Section 16-5-23.1;
(B) Has the e:trect ofsubstantially interfering with a student's education;
(C) Is so severe, persistent, or pervasive that it creates an intimidating or threatening educational enviromnent; or
(D) Has the e:trect ofsubstantially disrupting the orderly operation ofthe school (DSMF ~ 89; PRDSMF ~ 89 (denying that buJlying is defined according to Georgia Jaw); Linder Dep. Ex. 2; O.C.G.A. § 20-2-751.4.)
The Code ofConduct prohibited numerous kinds ofpeer-on-peer misconduct which could be characterized as
''bullying," including a section entit1ed ''Physical and Verbal Abuse," which contained at Jeast nine di:trerent
described o:trenses that address student interpersonal reJationships. (DSMF ~ 90; Linder Dep. Ex. 2.) Ofienses
in the ''Physical and Verbal Abuse" section ofthe 2009-2010 Code ofConduct inchxled:
6.1 Acts ofPhysical Vio1ence Connnitted Against Other Students (including sexual harassment)
6.2 Fighting
6.3 Pushing, Shoving, Kicking, or other physically aggressive behaviors
6.4 Endangering the well being ofse1fand/or others throughjokes, pranks, tricks, games, or actions ofpoor
judgment, etc.
6.5 ·Sexual harassment and sexual vio1ence
6.7 Acts ofa threatening nature or verbal abuse directed toward student, stafllschool employee/substitute . inchxling vulgar, o:trensive or pro:fime language 6.9 Bullying, e1ectronic bullying, threatening, and hazing
6.10 Verbal abuse or disrespectful conduct toward other students
6.12 Gang reJated activity
6.13 Harassment based on national origin or etlmic background
(DSMF ~ 91; Linder Dep. Ex. 2.) For each o:trense, the Code ofConduct described the-range ofconsequences
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that could be imposed fur violation of the Code ofConduct and the procedures fur administering the discipline
process. (DSMF, 92; Linder Dep. Ex. 2.) The consequences fur violations ofthe Code ofConduct varied
based on the individual circmnstances ofthe infraction as well as what the Code ofConduct described as
"mitigating" and "aggravating" factors." (DSMF , 93; PRDSMF , 93 (arguing that it was inappropriate to allow
teachers and administrators discretion); Linder Dep. Ex. 2.) Within the general framework ofthe Code of
Conduct, teachers and administrators bad discretion on how to respond to any give~ violation ofthe Code based
on their assessment ofthe fucts. (DSMF , 94; PRDSMF , 94 (arguing that discip1ine should be mandatory and
uniform); Linder Aff, 2.)
MCHS used what is known as the STEP discip1ine process, a progressive discip1ine system teachers used to
address minor classroom concerns with the student and the studenfs parents. (DSMF ~ 95; PRDSMF, 95
(arguing that program was not in place while Tyler was a student atMCHS); Thornbmy
.,.13-14 ("
[MCHS] used and continues to use ... ').) Administrators at MCHS discussed discipline procedures with the
fucuhy at the beginning ofthe school year and at various times throughout the school year as needed. (DSMF ,
96; PRDSMF, 96 (arguing that teachers were not given instructions or training on bullying and discipline policy
13-14; Linder
12, Ex. H; Tackett
10;
or how it should be interpreted or applied); Thornbmy
Aff ofSandra Meade, 7.)
Aft:
Aft:,,
Aft:,
Aft:,
b. Progratm Addressing Student Behavior16
MCHS's cmricuhm also included the 'Teachers as Advisors" program, which provided students with ongoing
instruction related to interpersonal relationships, as wen as with :infurmation related to career and coDege decision
making. (DSMF ,.97; PRDSMF , 97 (disputing re1evancy); Linder Aff , 13.)17 MCHS assigned each student
· to a small group ofstudents who met week]y with an assigned teacher who imp1emented the program (DSMF ,
13; Linder
13, Exs. J-M; Tack~tt
9.) Mr. Tackett served as Tyler's advisor in tenth and e1eventh
grade, and Mr. Tackett's group consisted ofsix. students. (ld.) In the group, Mr. Tackett addressed the Georgia
Perfurmance Standards fur the Teachers as Advisors Program, which include:
\
Afi,
Aft:,
1. Recognize the benefits ofinteracting with others in a way that is honest, fuir, helpful, and respectful;
2. IdentifY positive social skills (good manner, showing gratitude, etc.);
3. IdentifY and dermnstrate ways to respect and work cooperatively with others;
4. Describe and detmnstrate e:ffuctive conflict-management skiDs;
5. Recognize that one must accept responsibility fur·his/her behavior;
6. Recognize that one should have know1edge about, respect fur, be open to, and appreciate all kinds ofhmnan
diversity; and
7. Recognize that the ability to interact positively with diverse groups ofpeop1e may contribute to learning and
academic achievement.
Aff,
(DSMF, 99; Linder
13.) Teachers in the Teachers as Advisors Program review the Student Handbook
(the ''Handbook') and the Code ofConduct with their advisees within the first three days ofeach new school
year, and students and parents are required to sign a furm attesting that they have read the Handbook and the
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Code ofConduct. (DSMF ~ 100; PRDSMF (denying that it is an effective program or deterrent to bullying);
Linder Aff ~ 14; Thombmy Aff ~,15; Aff ofChar1es Longmire~ 8; TackettAff ~ 10.)
When Tyler was in ninth grade, MCHS also offered "Character Education" as required by Jaw through the
Teachers as Advisors program (DSMF ~ 101; PRDSMF (denying that program was effective deterrent to
bullying because Tyler was subjected to ongoing and continuous abuse); Aff ofKaren Harkleroad , 5, Ex. C.)
The Character Education curricuhm included tmits on tolerance, respecting others, dealing with adversity, peer
pressme, positive self concept, drug awareness, risk taking, personal growth, and making healthy choices. (Id.)
When Tyler was in ninth grade, MCHS participated in the 'Mix It Up" program offered by the Southern Poverty
Law Center's Teaching Tolerance Program, which addresses ''tolerance." (DSMF ~ 102; PRDSMF ~ 102
(denying that program was effective deterrent to bullying because Tyler was subjected to ongoing and continuous
abuse); Harkleroad Aff ~ 6, Ex. D.)
Beginning in 2008, the Mmray County School District ('MCSD'~ piloted a program at the Ninth Grade
Academy (''N GA'~ caDed ''Positive Behavioral Interventions and Support (''PBIS ·~ to improve overall student
behavior, including peer to peer relationships. (DSMF ~ 103; PRDSMF ~ 103 (arguing that PBIS was not
instituted fur Tyler's grade leve~; Linder Aff ~ 15, Exs. M-T.) In the mllof2009, MCSD implemented PBIS at
all grade leve1s. (DSMF ~ 104; Linder Aff ~ 15.)18
c. Lack ofAdditiOnal Anti- Bullying Progra.rm
While Tyler Long was a student, MCHS did rot hold any assemblies or convocations where the subject ofthe
schoors anti-taunting, anti-bullying, or anti-harassment policies were discussed. (PSMF W161, 173, 210-11;
·Swilling Dep. at 11; ThombmyDep. at 39-50; Linder Dep. 131; Dep. ofSgt. Patrick Gainey at 77-78.)
Ahhough the Code ofConduct prohibited all verbal and physical harassment, it did rot specifically mention or
address disability harassment. (PSMF ~ 163; Linder Dep. at 14, 16-17.)
Derendant Linder acknowledges that people with disabilities can be made fim o~ taunted, harassed, and be a
target fur inappropriate conduct due to their disability. (PSMF ~ 187; Linder Dep. at 53.) Defendant Linder
never instructed Mr. Swilling, the Assistant Principal at NGA, to speak to students on the issue ofdisability
harassment, and Mr. Swilling never got up in front ofany group ofstudents to go through the schoor s policy, if
any, against disability harassment. (PSMF W 164-165; DRPS:MF ~ 164 (arguing that teachers were responsible
fur reviewing the Code with students); Swilling Dep. at 18.) Mr. Thornbmy, the Assistant Principal in charge of
discipline at MCHS, never arranged any program or went to any student classroom to exp1ain to students and
teachers that bullying would not be tolerated, or to exp1ain how teachers could confidentiallyreport bullying and
inappropriate conduct. (PS:MF W176-78; DRPSMF ~ 176-78 (arguing that other progra.tm, including Code
ofconduct and Teachers as Advisors program adequately addressed bullying issues); Thornbmy Dep. at 39-43,
45-46.)19
Defendant Linder testified that, although MCHS did not have any established policy in place fur anonymously
reporting or complaining about the bullying or other students, it did have an online complaint fOrm that people
could u8e when they had a concern or complaint. (PS:MF W212, 215; DRPS:MF ~ 212; Linder Dep. at 131
32, 195.) MCHS did rot have a confidential drop box or a hotJine fur anonymously reporting the bullying of
other students. (PSMF W213-214; DRPSMF (arguing that students are taught to let adults know ifthere is
something wrong through Teachers as Advisors program); Linder Dep. at 132.)
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Sergeant Gainey, Tyler's JROTC instructor at MCHS, testified that, based on his personal knowledge,
Derendant Linder never gave teachers any training, programs, instruction, seminars, presentations, or meetings
focused on bullying and harassment, how to respond to it, and that it would not be tolerated. (PS:MF ~ 224;
DRPSMF ~ 224 (arguing that witness does not have personal knowledge ofwhat Defendant Linder provided to
teachers other than bil::tEelf); Gainey Dep. at 224-23 3.) Sergeant Gainey testified that Defendant Linder never
arranged for teachers to have any training or instruction on the bullying policy, on how to explain the bullying
policy to the students, or on how the bullying policy woukl be enforced. (PS:MF ~~ 225-228; DRPSMF (arguing
that witness can only testlly to his personal knowledge); Gainey Dep. at 76-79.) Ms. Gallman testified that the
only bullying instructionshe received was ''to !review and just be familiar with the Code ofConduct." (PSMF ~~
89-90; DRPS:MF ~~ 89-90 (objecting to relevancy and lack offederal bullying definition); Galhnan Dep. at
29.)20
d. Faculty Supervision
MCHS required teachers with classroorrn to stand outside their classroom doors in the hall in the.liDrning befure
classes and during every class change to llX>nitor student conduct in the hall. (DS:MF ~ 109; PRDSMF ~ 109;
Linder Aff ~ 12.) When Tyler was a student, :MCHS had forty-two video cameras throughout the building.
(DSMF ~ 110; PRDSMF ~ 110; Linder Afi ~ 12.) MCHS a1so had two school resource officers ("SROs'~,
with a station at the intersection ofseveral halls from which they llX>nitored the halls on video camera llX>nitors as
well as through the windows ofthe stationitse1f (DS:MF ~~ 111-12; PRDSMF ~ 111-12; Linder Aff ~ 12;
Aff ofDennis Dentnx:m ~ 6.) An the administrators, including Defendant Linder, could llX>nitor video cameras
from computers at their desks or later on recorded video fur at least the previous two to three weeks. (DSMF ~
113; PRDSMF ~ 113; Linder Aff ~ 12.)21
e. IDEA and Section 504 Protection
MCHS receives federal fimds to ensure that all students have equal educational opportunities. (PSMF ~ 197;
Linder Dep. at 181-84,i2 Pursuant to the Individua1s with Disabilities Act (''IDEA'~, 20 U.S.C. § 1400 et seq.,
students who are disabled and eligible fur services, such as Tyler, are served through an Individual Education
Program (''IEP'~, which is developed by education professiona1s within the school district, the student's parents
and, where appropriate, the student (the ''IEP team'~. (DSMF ~ 124; PRDS:MF ~ 124; Aff ofAllison Oxford~
'40.)23
IEPs and bullying policies are designed to protect against bullying and harassment ofstudents with disabilities.
(PSMF ~ 188; DRPSMF ~ 188 (objecting to term "bullying'~; LinderDep. at 54.) Prior to this lawsuit,
Defendant Linder had never seen Tyler's IEP. (PSMF ~ 201; DRPS:MF ~ 201 (objecting to materia1ity); Linder
Dep at 123.)
5. Ninth Grade-- 2007-2008
NGA is located on a separate wing ofthe MCHS campus. (DSMF ~ 4; Dep. ofTr. L. at 30-31; Dep. ofTe. L
at 28.) When Tyler was in ninth grade, Mr. Swilling was in charge ofdiscipline at NGA. (PSMF ~ 126; DSMF ~
126; Swilling Dep. at 7.) Defendant Linder designated all disciplinary duties fur students in the ninth grade to Mr.
Swilling. (PSMF ~ 127; DRPSMF ~ 127; Swilling Dep. at 7.) Mr. Swilling was the person ''who made the
decisions about what needed to be reported to Principal Linder and what didn't need to be reported to her."
(PSMF ~ 128;.DRPSMF ~ 128; Swilling Dep. at 7.)
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Mr. Swilling cou1d not recall Defendant Linder telling him that Tyler bad a disability or a history ofbeing bullied.
. (PSMF W129-31; Swilling Dep. at 25-27.) Mr. Swilling, however, a1so testified that Defendant Linder ''kept
[him] very c1oselyupdated on Tyler." (Swilling Dep. at 23.)
a. First Semester Ninth Grade
In March 2007, when Tyler was still in eighth grade, MareDe Bowers, the lead special education teacher at
NGA, participated in the development ofTyler's IEP for ninth grade. (DSMF, 133; Aff ofMareDe Bowers,
4.) On March 13, 2007, Ms. Bowers led a meeting ofTyler's IEP team and was designated as the teacher who
would provide Tyler with special education services, namely working with Tyler to develop social skills training.
(DSMF, 134; Bowers Aff, 4, Ex. CC.) Tyler's IEP team decided that Tyler would attend allregu]ar
education classes and be served on a consultative basis for autism, with two sessions per week ofspeech and
language services. (Bowers Aff, 4.) Prior to the arrival ofstudents for the start ofthe 2007-2008 school year,
Ms. Bowers met with all ofTyler's teachers to review his IEP and discuss his disability. (DSMF, 136; Bowers
Aff , 6, Ex. A.) Ms. Bowers provided the teachers with a document caDed ''IEP at a Glance," as well as with
other documentation related to Asperger's. (DSMF, 136; Bowers Aff, 6, Ex. A.)
·On Septembe~ 6, 2007, Ms. Long sdnt an email to Ms. Bowers and Mr. Swilling complaining about Tyler's
weight~ teacher, Mr. Archie. Ms. Long suggested that, if Tyler does not "get protection :from students and
teachers," he will need a "shadow," and asked Ms. Bowers to pass along the email directly to Mr. Archie.
(DSMF, 139; PRDSMF, 139; PSMF, 113; Dep. ofMareDe Bowers at 42; Bowers Aff, 10, Ex. E;
Swilling Aff , 3, Ex. A.) Tyler informed Ms. Bowers that ''Mr. Archie was picking on him and not understanding
what he needed or what he was asking for." (PSMF , 114; Bowers Dep. at 114.) Ms. Long a1so contacted
Defendant Linder and requested a meeting. (PSMF, 115; DRPSMF, 115; Bowers Dep. at 43.)
After she received the September 6, 2007 emaiJ, Ms. Bowers caDed Ms. Long, Mr. Swilling talked to Coach
Archie and to Mr. Long, and Ms. Bowers scheduled an IEP meeting for all ofTyler's teachers to attend and
meet PlaintifiS. (DSMF, 140; Bowers Aff, 11; Swilling Aff, 3, Ex. A.) On September 24, 2007, Tyler's IEP
team met,·and amended the March 2007 IEP to ·address parental concerns. The team informed Tyler's teachers
about social misunderstandings which could impact his academic progress and discussed the need for aduh
monitoring as a resuh ofTyler's problem in Mr. Archie's weight training class. (DSMF, 142; Bowers Aff, 13,
Ex. G.) At the meeting, some ofTyler's teachers ta1ked about how Tyler was doing in their classes, and PJain.tifiS
provided information about Tyler's need for explicit instructions regarding how to complete assigmnents. (Id.y2 4
On September 28, 2007, Ms. Long emailed Ms. Bowers and reported that a boy had spit in Tyler's hmch
because Tyler sat at the ''popu1artable." (DSMF, 143; PRDSMF, 143; PSMF W100-01, 135-36; Bowers
Dep. at34-35; Bowers Aff, 14, Ex. H.) Ms. Bowers forwarded that message to Mr. Swilling and Nancy
Pettit, proposing that teachers in the hmchroom be made "aware ofTyler and his situation" (DSMF , 143;
PSMF W102, 119 (stating that spitting incident got back to the administration); Bowers Dep. at 57.) Upon
receipt ofthe emaiJ, Mr. Swilling took Tyler to the hmchroom and asked him to point out the student who spit in
his hm.ch, but Tyler was mabie to do so. (DSMF, 144; Swilling Dep, at 33-34.) Mr. Swilling investigated the
incident, but nobody was disciplined because Mr. Swilling coukl not find evidence that the incident took place.
(Swilling Dep. at 34.)25
On October 25, 2007, Ms. Bowers convened an IEP meeting where the team decided that Tyler woukl be
permitted to come directly to Ms. Bowers' classroom when he arrived in the morning and eat brea.ldast with Ms.
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Bowers, to sit near a teacher in the hmchroom, and to leave five minutes early to change cJasses. (DSMF ~ 147;
PSMF ~~ 104-07 Bowers Aff ~16, Ex. J.) Ms. Bowers testified that the acconnnodations were designed to
reduce Tyler's anxiety, avoid stress in the hallways, and a:ffurd him a quiet pJace to begin his day and avoid
crowds. (Bowers Aff ~ 16; Bowers Dep. at 38.) Sergeant Gainey testified that the accormnodations were '~o
create a situation that would avoid the bullying situation arid do the best to suppress Tyler from being bullied."
(GaineyDep. at 169-70.)
On November 2, 2007, Ms. Bowers brought Tyler to Ms. Harkleroad because he had been tripped by somebody in the gym and was upset. (PSMF ~ 65; DSMF ~ 149; Dep. ofKaren Harkleroad at 23; Harkleroad Aff ~ 3, Ex. A.) Ms. Harkleroad and Ms. Bowers arranged a meeting between Tyler and the alleged perpetrators so that Tyler could explain why he reacted the way he did. (DSMF ~ 150; Harkleroad AfE ~ 3.) There is no record of any :further discipline for the tripping incident, Ms. Harkleroad did not report the incident to . any administrator, and Tyler made no report that the students bothered him again. (PSMF ~ 69; DSMF ~ 151; Harkleroad Aff ~ 3.) Ms. Harkleroad testified that she did not consider the tripping incident to constitute bullying because :it was an isolated incident. (PSMF ~ 67; Harkleroad Dep. at 25.) On November 8, 2007, Ms. Long emailed Defendant Linder, with copies to Ms. Bowers and Ms. Swilling,
requesting Defendant Linder's assistance ensming that Mr. Archie protected Tyler from peer mistreatment and
ceased teasing Tyler bimse1f (DSMF ~ 152; Linder Aff ~ 4, Ex. A.) Ms. Long wrote:
I am writing you concerning my son, Tyler Long. He is in the ninth grade. We have had several issues with
students and teachers this year. Tyler has Aspergers syndrome. Therefore, his social skills are not adequate.
Three ofhis teachers have adjusted well to Tyler's disability. Mr. Archie, on the other hand, has not fuired well I
have phoned and met with Mr. Swilling several times concerning Mr. Archie. I believe Mr. Swilling has done his
best to handle the situation, but it is time to take the issues finther up the ladder. Mr. Swilling has helped Tyler
many times, and he feels comfurtable going to Mr. Swilling. Tyler has had his clothes destroyed; been ridiculed
by Mr. Archie and other students, and assaulted. The last occurrence happened last Thursday. A boy rubbed his
privates on Tyler's leg. Mr. Archie told my husband that he did not see the :first incident, the boy did this twice,
because [Mr. Archie] was on his calculator. In reality, Mr. Archie was talking on the cell phone. Not only was
the teacher not watching my child, but he lied to us concerning what he was doing during the incident. When
Tyler had his shirt destroyed, Mr. Archie was sitting in his office. Mr. Swilling told Tyler to stay with Mr. Archie
at all times during class to prevent incidents such as this, but I do not believe Mr. Archie mderstands the
importance ofwhat he is asked. At one point, he called Tyler ''leave me alone Long" during roll call.
On 11/6/07, Tyler was sitting in the gym before break:fust. A girl was teasing Tyler, and he ignored her. The girl
eventually called Tyler a "sissy'' and hit him in the fuce. Tyler went to Mr. Swilling, and Mr. Swilling told Tyler
that he would handle the situation I asked Tyler ifthe teachers on duty know what occurred. Tyler stated that
they did not because "they were too busy talking."
Tyler is difierent. This makes him prone to ridicule. We have told him to ignore others and to not fight back.
However, are we causing him to be assaulted tmre? He needs protecting from the fuculty. He needs to be
watched. Right now, he is scared ofwhat will happen next. He states, 'Why should I tell? They won't do
anything". AJso, ifhe says something, he gets retaliation from the teacher, (in Mr. Archie's case).
Ms. Linder, I have been told that you are a problem solver. I am coming to you fur help. I am the parent on the
connnittee for "crop-out prevention" I don't want Tyler discmn:aged. We do our best to keep his spirits up.
However, I will not tolerate teachers such as Mr. Archie. Also, I will not tolerate teachers socializing instead of
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watching the students. I understand that they can't see everything, but some get comp1acent. You ju8t can't get
that way with Tyler. He is sti111earning how to react in social situations. He does not have that innate ability.
Mrs. Marelle Bowers has been a saint She does her best to help Ty1er. However, she can't do it alone~
My husband has called you yesterday and this Imming. He has not received a retmnphone call ....
I do want to say that Tyler has some excellent teachers who have tried very hard to understand his deficiencies.
How wonderful theyare! I don't want to get to a point where he needs someone with him at all times. But, as
parents, we have to do what is necessary to protect our child. Again, we are asking for help.
(Linder Aff Ex. A) The day Defendant Linder received Ms. Long's e-mai1, she called Mr. Swilling and asked
him what contact he had with Plaint:i:OS and whether he had addressed the prob1ems discussed in Ms. Long's
email (DSMF, 153; Linder Aff, 4.) As a result ofher discussion with Mr. Swilling, Defendant Linder decided
to meet directly with Mr. Archie on November 8, 2007, to address Ms. Long's allegations. She followed up this
meeting the next day with a Jetter ofdirective to Mr. Archie. (DSMF , 154; Linder Aff , 4, Ex. B.)
On November 9, 2007, in response to Ms. Long's email to Defendant Linder, Ms. Bowers sent all ofTyler's
teachers an email message reminding them of the accmmnodations decided upon at the October 25th IEP
meeting. (DSMF, 155; PRDSMF, 155; Bowers Aff, 18, Ex. L.) Ms. Long responded to Ms. Bowers' email
stating, among other things, ''that is wonderful" (DSMF, 156; PRDSMF ,_156; Bowers Aff, 18, Ex. L.) On
November 14, 2007, Ms. Bowers and Ms. Long exchanged emails regarding Ty1er's new schedule. Ms. Long
stated that 'Ty1er did tell me that he has had the best couple ofdays. I think he feels tmre comfurtable with his
new routine." (DSMF , 157; PRDSMF , 157; Bowers Af[ , 19, Ex. M.)
Mr. Swilling could not recall receiving Ms. Long's letter and did not remember or provide evidence of any
investigation or disciplinary action taken in response to the allegations in Ms. Long's email (PSMF ,, 147-48
(rubbing privates on Tyler's Jeg), 150-51 (hittingTy1er in the fuce); Swiller Dep. at 39-40.) Although he was in
charge ofninth grade discipline, Mr. Swilling could not specfficalJy recall Defendant Linder coming to ta1k to him
about the contents ofthe emai1, or giving him any specific.instruction on how to handle Ty1er throughout the year.
(PSMF ,, 154-56; Swilling Dep. at 25-26, 40.)
On November 20, 2007, Ms. Long notified Ms. Bowers that Ty1er said someone was ''kicking'·' him whi1e
waiting for the bus, and.requested that Ty1er stand near Ms. Bowers until he gets on the bus. (DSMF, 158;
PSMF , 132; Bowers Aff , 20, Ex. N.) Ms. Bowers responded that: (1) this was an acceptab1e proposal; (2)
Ty1er waJked out to the bus with her tmst days; and (3) she and others were attempting to address negative
interactions Tyler had with other students. (DSMF, 158; Bowers Aff, 20, Ex. N.) Mr. Swilling could not
reciill ifMs. Bowers ever relayed that information to him or if anyone was disciplined for the alleged kicking
incident. (PSMF mf 133-34; Swilling Dep. at 30.)
'
On November 26, 2007, PJaintiftS met with Defendant Linder and Jetmifer Thomason, Assistant Principal of
Curricuhun and Instruction (DSMF , 159; Linder Aff , 5.) P1ainti:fJS discussed concerns with students not
understanding Tyler, the :frustration ofdealing with an autistic child, and their desire for Tyler to be successful at
MCHS. (Linder Aff , 5.) On November 29, 2007, Ms. Long emailed Ms. Bowers and stated that the meeting
with Defendant Linder ''went extremely weD." (DSMF, 160; Bowers Aff, 21, Ex. 0.) Ms. Long also emailed
Ms. Thoma8on and thanked her for the meeting and for caring about Ty1er. (DSMF , 161; Linder Aff , 5, Ex.
C.)
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At the end of:first semester ofninth grade, Tyler's GPAwas 94.5. (DSMF ~ 162; GreesonAff ~ 6, Ex. Bi 6
b. Second Semester Ninth Grade
Mr. Archie resigned inJanuary2008. (DSMF ~ 164; Linder Aff ~ 6.) Defundant Linder wrote a letter to the
Superintendent, members ofthe Board ofEducation, and the Personnel Director requesting that the Board
approve Mr. Archie's request to resign because she was dissatisfied with his perfonnance. (!d.)
On January 23, 2008, Ms. Long etmiled Mr. Swilling, infonned him thatTyler was being bullied on the bus, and
alleged that Ms. Hall, at teacher at MCHS, had been hateful to Tyler. (DSMF ~ 165; PSMF ~ 112; Swilling AfE
~ 5.) Ms. Long requested to speak to Tyler's bus driver and arrange fur Tyler to sit behind. the bus driver to
"solve a lot ofthe bullying on the bus." (DSMF ~ 165; PSMF ~ 111; SwillingAff ~ 5, Ex. B; Bowers Dep. at
64.) Mr. Swilling fOrwarded the email to Ms. Bowers, who contacted Ms. Long and spoke to the teacher on
bus duty about arranging a discussion between Ms. Long and the bus driver. (DSMF ~ 166; PSMF ~~ 121,
139; Bowers Aff ~ 23, Ex. Q; Swilling Dep. at 38.) Ms. Bowers also spoke to Ms. Hall directly and to1d Mr.
Swilling that Ms. Hall should be aware ofstudents' perception ofher. (DSMF ~ 166-67; Bowers Aff, 23, Ex.
Q.) Ms. Bowers arranged for Tyler to walk to the bus with a teacher, stand next to a special education teacher
while waiting fur the bus, and sit behind the bus driver. (PSMF , 122; DRPSMF ~ 122; Bowers Dep. at 64
65.) Ms. Bowers testified that this arrangementre1ated to Tyler's concemaboutbeingbullied and was designed
to ''make him feel more comfortable about his situation." (PSMF , 109, 123; DRPSJ\.1F , 123; Bowers Dep. at
41, 65.) Sitting behind the bus driver was not part ofTyler's writteniEP. (PSMF, 110; Bowers Dep. at 41.)
OnJanuary 28, 2008, Ms. Bowers convened a meeting to allow Ms. Long to speak with Tyler's new teachers
and discuss his progress. (DSJ\.1F, 168; PRDSJ\.1F, 168 (objectingbased on relevancy); Bowers
24,
Ex. R)27 OnFebruary7, 2008, Ms. Long emailed Ms. Bowers and stated that Tyler "seem; more re1axed
about" Ms. HaD, and that Ms. Petit, the Assistant Principa~ "seemed absolutely wonderful" (DSMF , 169;
Bowers Aff , 25, Ex. S.) Ms. Long expressed hope that what Ms. Bowers was "doing fur Tyler will hopeful[ly]
(sic) he)p many more children in the future." (Id.y2 8
Aff,
On Apri122,·2008, Tyler reported to Ms. Harkleroad that two students were "sexually harassing" him. (DSMF ,
174; PRDSJ\.1F, 174; Harkleroad Aff, 4, Ex. B.) One ofthe students admitted to annoying Tyler because he ·
"didn't like" Tyler. (PSJ\.1F, 159; Swilling Dep. at 45-46.) Ms. Harkleroad refurred the tmtter to Assistant
Principal Swilling, who spoke with both boys individually and warned T.M. to "stop or severe consequences."
(DSMF ~ 175; PRDSMF, 175 (arguingthatlevelofdiscipJine was inappropriate); PSMF, 158; SwillingAff
,, 6-7.) Mr. Swilling did not further discipJine T.M. and neither Ms. Harkleroad nor Mr. Swilling received any
further comp1aints :from Tyler about T.M. (DSMF, 176; PRDSMF, 176 (''P]aintiffi; are not aware ofany
further comp1aints ... about T.M.'~; PSMF, 160; DRPSMF, 160 (arguing that no further discipJine was
required).)29
M.T.M. testified that, during Tyler's ninth grade year, a group of guys in the cafuteria took Tyler's milk carton
and p1ayed ''tmnkey-in-the-middle." (PSMF ~ 28; M.T.M. Dep. at 12.) No teacher or administrator observed
the incident, and M.T.M. did not report the incident to any teacher or administrator. (DSMF ~ 308; M.T.M.
Dep. at 12, 15, 25.) M.T.M. stated that, ifteachers had been in the cafuteria, ''theywouki have stopped it."
(M.T.M. :Dep. at 25.)
Ms. Bowers testified that Tyler tokl her that he "fult that he was being bullied." (PSMF , 94; DRPSMF ~ 94;
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Bowers Dep. at 29.) Tyler told Ms. Bowers about people calling him names, spitting in his :fbod, and picking on
. him in various ways. (PSMF, 95; Bowers Dep. at 30.) Ms. Bowers witnessed students hoking at Tyler and
teasing him in the hallway. (PSMF, 96-97; Bowers Dep. at 30.) Ms. Bowers took the students to the
counseling office alOng with Tyler and had a group discussion with Ms. Harkleroad about Asperger's,
difrerences, and how to treat other people. (Bowers Dep. at 31.) Ms. Bowers could not recall whether there
was any further discipline imposed on the boys fur teasing Tyler. (PSMF , 98; Bowers Dep. at 31.)
OnMay9, 2008, Tyler's IEP team met fur their ammalreview and to prepare fur Tyler's transition to the main
high school campus. (DSMF, 179; PRDSMF, 179; Bowers Aff, 29.) Mr. Tackett attended the meeting,
and the team detennined that Mr. Tackett would be Tyler's case manager in tenth grade. (DMSF, 180;
PRDSMF, 180; PSMF, 234; Bowers Aff, 29, Ex. W.) Mr. Tackett possessed the required state
certifications, but had no specialized training in autism or Asperger's. (PSMF, 235; DRPSMF, 235; Tackett
Dep. at 73-74~) The IEP fur tenth grade continued the accorrnmdations which permitted Tyler to leave his
c1asses five minutes early, to go to Mr. Tackett's room in the morning to eat his breakfust, and to not participate
in assemblies and pep rallies. (DSMF , 181; PRDSMF , 181; Bowers Aft: , 29, Ex. W.)30
On May 7,2008, Ms. Long sent an email to Defundant Linder and Sergeant Gainey, which read as fOllows:
SSG Gainey,
You made me cry. Thank you fur recognizing what Tyler CAN do versus what he can't I have wanted to write
you :fbr some time, but put it off:fbr whatever reason ... I am proud ofyou and LTC fur your eflbrts with these
kids. I know it isn't always easy. We still have a long road ahead, but I believe with the support ofthe ROTC
program, Tyler will have the confidence to be all that he can. I was so worried about Tyler going to high schoo~
but he bas actually made several gains.
Ms. Linder,
You have given us the he]p that we needed. I can't believe the wonderful fucuhy that we have encmmtered this
year. I hope that when Tyler graduates, we will all have a great success story to share with others. I know that
we may need your he]p and support in the next rew years, but I have no doubt that we can depend on you
Please thank all ofTyler's teachers fur me. Please reel :free to share our reelings. Everyone needs praise fur a job
well done. Tyler had a very rough time in middle school We struggled and had to fight fur so Irn.lCb. How easy
you made it :fbr him to grow.
.(DSMF , 87; PRDSMF , 87 (disputing relevancy); Linder Aff , 7, Ex. E.)
At the end ofninth grade, Tyler's GPA was 92.63 and he missed only two days ofschool (DSMF, 184;
Greeson Aft:, 6, Ex. B.)31
6. Tenth Grade
Ahhough MCSD Rules specifY that the Principal is in charge ofdiscipline at the high schoo~ Mr. Thornbmy,, the
assistant principa~ was the person in charge ofdiscipline :from the tenth to the twelfth grade levels at MCHS.
(PSMF W 166, 180-81; Linder Dep. at 14-15; Thornbury Dep. at 12.) Derendant Linder, however, oversaw
the entire school and Mr. Thornbmy could bring serious discipline issues to her. (Linder Dep. at 15; Thornbury
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Dep. at 12.)
a. First Semester Tenth Grade
In August 2008, prior to the beginning oftenth grade, Mr. Tackett met with each ofTyler's teachers individually
to discuss Tyler's IEP and noti:fYthemofTyler's acconnnodations. (DSMF ~ 187; TackettDep. at 74-75;
Longmire Aff ~ 3.) Mr. Tackett did not provide Tyler's teachers with information or education about the subject
ofautism, or exp1ain to the teachers that Tyler had a disability known as A.sperger's. (PSMF ~~ 237-38;
DRPSMF ~~ 237-38; TackettDep. at 74-76.) Ms. Thomason also held a meeting with Tyler's teachers to
discuss Tyler and his needs. (DSMF ~ 188; Meade Aff, 3.)32 Just after c1asses started, Mr. Tackett took
Tyler to meet Ms. Ga1hnan, one ofthe high schoofs col.IDSelors. (DSMF, 189; Aff ofJulie Galb:mn 3.)33
On August 29, 2008 Tyler reported to Ms. Galhnan that T.M. was spreading nnnors that Tyler "is gay and looks
atgaypom" (DS:M.F ~ 190; PRDSMF ,190; PSMF, 92; DRPSMF ~ 92; Ga1hnanDep. at24-25, Ex. 1.)
Ms. Ga1hnan told Tyler that she would speak with T.M., and, ifhis conduct continued, she would forward his
comp1aint to the discipline office. (DSMF, 191; PRDSMF ~ 191; Ga1hnanDep. at 25.) Ms. Galhnanspoke
with T.M., who said that the accusation involved a matter from the previous year, and Ms. Galhnan warned
T.M. ofthe consequences ofthe sexual harassment charges if the conduct continued. (DSMF , 192; PRDSMF
, 192 (denying that it was appropriate discipline); Galhnan Dep. at 26, Ex. 1.) Ms. Galhnan called Ms. Long to
report the incident and notified Mr. Thornbmy, who had primary responsibility for discipline at MCHS. (DSMF
, 193; PRDSMF, 193; Ga1hnanDep. at 26.) Tyler made no fi.nther report to Ms. GalhnanorMr. Thombmy
thatT.M. was harassing him (DSMF ~ 194; GallmanAff, 4; Thornbury Aff, 4.) Ms. Gallman testified that,
according to her understanding ofthe Code ofConduct, T.M.'s behavior would not be considered bullying.
(PSMF, 74; GalhnanDep. at27-28.)
On September 8, 2008, Tyler reported to Mr. Thornbmy that, on September 3, 2008, B.M. pushed him down
the careteria stairs and annoyed him in the hmch line, and that her boyfriend, J.B., 1ater punched Tyler in the fuce,
and B.M. pushed him again. (DSMF, 195; PRDSMF, 195; ThornburyDep. at 42-43; Thornbur)' Aff, 5.)
Mr. Thornbury took statements from Tyler, a witness named J.M., and both J.B. and B.M. In addition, Mr.
Thornbury asked School Resource Officer ("SRO'') Dennis Dent:lron to help him with the investigation (DSMF
, 196; Thornbury Aff ~ 5, Ex. A; Den1m:mAff, 5.) In his statement, J.B. alleged that Tyler called his girlfriend,
B.M., a ''pregnant bitch." (DSMF, 197; PRDSMF ~ 197 (objecting based on hearsay and relevance);
Thornbury Aff , 5, Ex. A.)34 Mr. Dentm:m reviewed videotape from the cameras in the cafeteria on the day in
question, but round no evidence ofthe altercation (DSMF, 198; PRDSMF, 198 (arguing that videotape
review is irrelevant); DentrmnAff ~ 3.)35
Mr. Thornbury charged both J.B. and B.M. with the Code ofConduct o:lfunse of"bullying," and assigned each
ofthem to five days In- School Suspension (''ISS''). (DSMF , 199; PRDSMF , 199 (arguing this is only time
discipline was administered to any student for inappropriate conduct with respect to Tyler); Thornbury Aff, 5,
Ex. A.)36 Mr. Thornbury testified that this incident was the only bullying event re1ated to Tyler that he couJd
reca1l (PSMF ,, 173-74; ThornbmyDep. at42-44~)
PlaintiffS contacted Deputy Dentrmn' s supervisor and told him that they wanted Deputy Dentmon to pursue
criminal charges against J.M. and B.M. (DSMF, 205; PRDSMF, 205; DentrmnAff, 4; T. Long. Dep. at
28-29.) Deputy Dentrmn declined to press charges because he did not see anything on the videotape to
corroborate the incident. (DSMF, 200; PRDSMF, 200 (admitting that school would not :file criminal charges
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so PJaintifiS bad to :file criminal charges on their own); Dentrmn Afi ~ 4.)31 Deputy Dentrmn to1d his supervisor
that, ifTyler's parents wished to pursue criminal charges, he would assist them with completion ofthe applicable
fonns. (DSMF ~ 206; Dentrmn Afi ~ 4.) Ms. Long tret with Deputy Dentrmn, who provided her with the
infurmation to complete a Sheriffs office report and expJained to her that, because J.B. was no longer a juvenile,
·she could pursue the matter in Magistrate Court. (DSMF ~ 207; T. LongDep. at29; DentrmnAff ~ 5, Ex. A.)
· PJainti:BS appeared in Magistrate Court later in the m.n, but decided not to pursue criminal charges against J.B.
(DSMF ~ 208; PRDSMF ~ 208; T. LongDep. at 18-19.)38
On September 12,2008, Charles Longmire, Tyler's honors chemistry teacher, gave Tyler, T.P., and M.V. a
''warning" fur ''incessant ta1king." In addition, he issued warnings to T.P. and M.V. for ''picking on special needs
student." (DSMF ~ 21 0; Longmire Afi ~ 4.) Mr. Longmire aJso emailed Mr. Thornbmy and requested that he
ta1k to all three boys. (Thornbmy Aft: ~ 7; Longmire Afi ~ 4, Ex. A.) Mr. Thombmy testified that Tyler initiated
the verbal a1tercation with T.P. and M.V., that the boys responded verbally, and that all three boys would not
immediately stop at Mr. Longmire's request. (DSMF ~ 211; PRDSMF ~ 211 (disputing relevancy); Longmire
Aff ~ 5.)39 Mr. Longmire sent Mr. Thornbmy paperwork showing that he issued a warning to all three boys;
(DSMF ~ 212; Longmire Afi ~ 5.) Mr. Longmire was aware ofTyler's disability and social anxiety. (Longmire
Aff ~ 6.)
Neither T.P nor M.V. bad any discip1ine refurraJs either befOre or after the incident in Mr. Longmire's cJass, and
Tyler never reported to Mr. Longmire or Mr. Thornbmy that either boy bothered him again. (DSMF ~ 2 i3;
PRDSMF ~ 213 (disputing relevancy); Longmire Afi ~ 6; Thornbmy Afi ~ 7.)40 Mr. Longmire had no finther
probletm with Tyler, T.P., or M.V. throughout the remainder ofthe setrester. (DSMF ~ 214; PRDSMF ~ 214;
Longmire Afi ~ 6.)
On October 6, 2008, Sandra Meade, Tyler's honors Spanish teacher, gave N.B. a warning fur academic under
perfunnance and saying sotrething ''unkind" to Tyler re1ated to not wanting to work together with Tyler in c1ass.
(DSMF ~ 215; Meade Afi W4-5, Ex. A.) Mr. ThornbmytretwithN.B., counseledhimregardingworking
harder in Spanish and issued a warning. (DSMF ~ 216; Thornbmy Afi ~ 8.) Following the incident, Ms. Meade
made no :finther reports and did not observe any finther negative interaction between Tyler and N.B. (DSMF ~
217; Meade Afi ~ 5.) Other than this report :fromMs. Meade, N ~B. bad a perfect discip1ine record throughout
high school (DSMF ~ 218; Thornbmy Afi ~ 8.)
InNovember 2008, Tyler's English teacher, Diana Gibson, submitted a report to the discip1ine office indicating
that Tyler to1d her that M.B. kicked him in the haD. Based on Tyler's accmmt, Ms. Gibson described the incident
as one of''horse p1ay." (DSMF ~ 219; Afi ofDiana Gibson~ 5, Ex. A.) Tyler asked Ms. Gibson not to report
the matter because M.B. was Tyler's :friend, but Ms. Gibson exp1ained that she bad to report incidents involving
physical interactions. (DSMF ~ 220; Gibson Afi ~ 5.) M.B. received three days ISS fur the incident. (DSMF ~
222; PRDSMF ~ 222 (denying based on Mr. Thornbury's prior deposition testimony); Thornbmy Afi ~ 9, Ex.
D.)41 M.B.·had an extensive disciplinary history, but he was not reported fur any other disciplinary matters
re1ated to Tyler. (DSMF ~ 223; Thornbmy Afi ~ 9, Ex. D.)
On December 12, 2008, Ms. Meade notified Ms. Galhnan that a student, C.R, had bmnped his head into
Tyler's :fingers in Spanishc1ass. (DSMF ~ 224; PSMF ~ 76; GalhnanDep. at 35.) Ms. Galhnanmet with C.R,
who explained that he was aggravated with Tyler because Tyler was allowed to sleep in class. (DSMF ~ 225;
GaDman Afi ~ 4.) Ms. Galhnan counseled C.R about the incident and asked fur his help in understanding Tyler.
(DSMF ~ 226; Ga1hnan Afi ~ 4.) Tyler to1d Ms. Galhnan that he was :friends with C.R, and that he did not want
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the matter reported as a discipline issue. (DSMF ~ 227; GallmanDep. at 40, 48.)
During Ms. Galhnatis conversation with Tyler, Tyler reported to Ms. Galhnan that people picked on him daily.
(PSMF ~ 79; DSMF ~ 228; GaDman Dep. at 36; Ga1hnan Aft: ~ 4.) Tyler informed Ms. Ga1hnan, ''I'm used to it.
I've been putting up with it fur years." (PSMF ~ 80; DSMF ~ 228; GaDman Dep. at 37-38.) Ms. Galhnan asked
Tyler fur names ofstudents who picked on him, but Tyler declined to provide any names. (Galhnan Dep. at 39
40.) Ms. Galhnanasked Tyler to "talk with (her) ifhe gets tired ofthe way he's being treated, ifhe's upset, needs
to vent, or Just needs a break." (DSMF ~229; GalhnanAft: ~ 4.)
Ms. Ga1hnan did not re1ay the infOrmation about Tyler being picked on daily to the administration because Tyler
did not provide names, and the issue therefOre ''wasn't disciplinary." (PSMF ~ 81; DRPSMF ~ 81; GalhnanDep.
at 38-3 9.) Neither Derendant Linder nor any school administrator ever specificalJy instructed Ms. Ga1hnan that, if
a student came to her and to1d her that he or she was being picked on "daily," she needed to report it to the
administration (PSMF ~ 82; DRPSMF ~ 82 (disputing relevancy); GalhnanDep. at 39-40.)42 Ms. Galhnan
testified that, ''if someone comp1ains to [her] about being bullied, it shou1d be reported," but she did not believe
that Tyler's accusations constituted bUllying under the Code ofConduct. (PSMF ~·85; DRPSMF ~ 85; Ga1hnan
Dep. at 62-63.) In her metmrandum summarizing her conversation with Tyler, Ms. Gallinan wrote: ''I'm not sure
what to do to protectbimexactly."(PSMF~ 83; GalhnanDep: at44-45.)
Tyler asked Ms. Ga1hnan to speak to two students, T.M. and B.M., who Tyler said were on probation and not
supposed to ta1k: to him. (DSMF ~ 230; Galhnan.Afr: ~ 4.) Upon further questioning, Tyler admitted that the
students were just looking at him, not actualJy talking to him (DSMF ~ 231; Galhnan Aft: ~ 4.) Ms. Ga1hnan
nevertheless called T.M. and B.M. to her office, learned that neither was on probation, and counseled them to
stay away :from Tyler and to not ta1k: to him. (DSMF ~ 232; Galhnan Aft: ~ 4.) Tyler did not submit any
additionalcompJaints to Ms. Galhnanabout T.M., B.M., or C.R (DSMF ~ 233; Ga1hnanDep. ~ 4.)
C.H. testified that students repeatedly bullied Tyler in the cafeteria during his tenth grade year; (PSMF ft 5, 9,
14, 19; C.H. Dep. at 6-8, 29.) C.H. recalled students calling Tyler names such as ''retarted, slow, :faggot,"
stealing his rood, and smacking him. on the head. (C.H. Dep. at 29-30.) Prior to Tyler's suicide, C.H. never
reported any bullying incident to a teacher or administrator. (DSMF , 309; C.H. Dep. at 39.)
A.S. observed students bu11ying Tyler in Ms. Gibson's class in tenth grade. He recalled 'people throwing his
books on the floor, hiding things :from him, just calling him names whenever the teacher was out ofc1ass .... "
(PSMF ft 15, 41; AS. Dep. at 6.) M.D. observed students verbally picking on Tyler duriDg Mr. Wildes' math
class in tenth grade. (PSMF W27, 37; Dep. ofM.D. at 5-6, 17~) M.D. testified that students called Tyler "gay."
· (DSMF ~ 319; M.D. Dep. at 6.) M.D. stated that the boys picked on Tyler "[p]robably 10, 15 times throughout
the semester." (Id. at 17.) Mr. Wildes observed some ofthe incidents, and M.D. testified that Mr. Wildes woukl
tell the students to stop. (Id. at 8.)
Following Tyler's meeting with Ms. GalhnaninDecember 2008, MCSD has no records ofanyr~ports by Tyler
or anyone eJse that any identified students mistreated Tyler until after Tyler's death in October 2009. (DSMF ~
233; PRDSMF ~ 233 (arguing that whether school has any record is irrelevant because there is significant
evidence that Tyler was repeatedly abused and mistreated at MCHS); Thornbury Aft: ~ 11.) At the end offirst
semester, Tyler made a C in both Chemistry and honors Spanish and, at his tmther's request, wrote e-mail
messages to both teachers apo1ogizing fur his Jack ofefibrt. (DSMF , 234; LOngmire Aft: ~ 7, Ex. B; Meade
Aft:, 6, Ex. B.)
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b. Tenth Grade Second Semester
In March 2009, Mr. Tackett began preparing for the annual review ofTyler's IEP and asked Ms. Long for dates
for the meeting and permission to do transition testing in a series ofemail messages. Ms. Long a1so notified Mr.
Tackett that Ty1er was stressed and :fi:tilingAdvanced P1acement ("AP'' World IEstory. (DSMF ~ 235; Tackett
Aft: ~ 5, Ex. B.) On March 2, 2009, Ms. Long emailed Dustin Madaris, Tyler's history teacher, thanked him for
a letter regarding Tyler's perfurmance in the c1ass, and stated that ''Tyler has Asperger's Syndrome (a form of
autism). (He doesn't like for his teachers to know). He has an IEP, which I try not to use." (DSMF ~ 236;
PRDSMF ~ 236 (disputing relevancy); A:ff ofDustinMadaris~ 4, Ex. A.)43 Mr. Madaris responded and
indicated that he was "aware of[Tyler's] autism'' because Tyler "confided this to [him] Jast week." (Madaris Aft:
~ 4, Ex. A.) Tyler received a 95 in Mr. Madaris's AP history cJass as a final grade. (DSMF ~ 238; PRDSMF ~~
238; Madaris A:ff ~ 4; Greeson Aft: Ex. B.)44
On May 8, 2009, the IEP team met to review Tyler's progress over the year and plati for eleventh grade.
(DSMF ~ 243; Tackett A:fE ~ 6.) The team retained Mr. Tackett as Tyler's case manager and retained the
accommdations from the previous year, although Tyler had not been using them (DSMF ~ 244; Tackett A:ff ~
6-7, Ex. B.) For most ofthe previous semester, Tyler chose not to leave c1ass early and never sat at the
teachers' table at hmch. (TackettAff ~ 6.) At the conclusionoftenthgrade, Tyler had a 91.44 GPA and missed
only one fu11 day ofschool (DSMF ~ 246; Greeson A:ff ~ 6, Ex. B.) Tyler a1so earned the rank ofMaster
Sergeant in the JROTC program (DSMF ~ 247; Linder A:ff ~ 17, Ex. L)45
In March 2008, Derendant Linder was copied on an email from Ms. Long to Ms. Thomason, the assistant principa~
and Ms. Greeson, the school counselor. It reads as follows: I know you are all busy, but I wanted to drop an e-mail about something that has been on my mind. Ms.
Thomason, not many administrators take the time to correct a situation. What impresses me most is that you
supported Ms. Greeson. Some take another road. Some tell the parent what she wants to hear. You handled the
situation like a proressional You let me know that while mistake are sometimes made, people are human. You
Jet me know that my childrenwoukl be lucky to have Mr. Greeson as their advisor. You did not demean him in
any way, but the issue was resolved. I respect you for that. I told my husband that you could sell me any car on
the lot! You are in the perrect job. Mr. Greeson, you ta1ked to Tyler, and he respected you for that. You wrote a
wonderful note to me. It takes a real man to be gemrine in your response. No many can.
I wanted to say the good. We sometimes only hear the bad. Several ''people" have personally called me asking
that one or both ofmy kids could go to the new high school As I exp1ained to the kids, it's not about one or two
teachers. It's not about friends. It's about the support in that school as a who1e that will make you a success. I
reel honored that the kids will be attending school with people such as yourselves. My kids will get into troub1e.
They will be troubled. But, I believe they will get the help they need. Sometimes parents don't rmke the most
popu1ar choice, but hopefully we make the best choice. I reel confident that we have the too1s in you to get them
·
through anything that may come.
Honestly, thank you all. Instead ofthe situation being terrib1e, it helped confirm that my kids are right where they
shoukl be.
(DSMF ~ 88; Linder A:ff ~ 8, Ex. F; Greeson Aft:~ 4-5, Ex. A.)
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7. Additional Bullying Allegations46
Numerous witnesses observed students mistreating Tyler in the hallways. M.B. observed a student knocking
books out. ofTyler's band, telling him to ''pick them up, you idiot," and kicking Tyler when he bent down. (PSMF
W4, 29; M.B. Dep. at 25.) C.H. observed students knocking books out ofTyler's hand two or three times,
intentionally shoving their shoulders into Tyler in the haDs, and calling Tyler names. (PSMF W24, 30, 33, 39;
C.H. Dep. at 10-12, 16, 35.) C.H. testified that he saw Tylerbeirlgpicked on in the hallfuurteenor fifteen
times. (C.H. Dep. at 35.) C.H. testi:fied that solnetimes teachers observed these incidents. (Id. at 35-36.) A.S.
obsetved students bumping, pushing, and calling Tyler names :in the hall (PSMF ~~ 6, 22; A.S. Dep. at 5-7.)
A.P. a1so observed students pushing Tyler :in the haD, shoving him into lockers, and making rude remarks.
(PSMF ~~ 1, 23, 26; A.P. Dep.at 5-6.) B.P. observed students pushing Tyler :in the hall "everyday." (PS:MF ~~
2, 7, 13, 18; Dep. ofB.P. at 10-12.) BP testified that, ahhough teachers toki the students to stop and threatened
to write the perpetrators up, it fulled to stop the daily bullying. (B.P. Dep. at 17.)
Neither C.H. nor M.B. reported the incidents in the hall to any teacher or administrator. (DSMF ~ 306;
PRDSMF ~ 306 (arguing that students were not properly instructed on need to report bullying); C.H. Dep. at
39; M.B. Dep. at 36-37.) A.S. did not report the incident to any administrator, but reported one incident to Ms.
Gibson, a teacher. (DSMF ~ 315; A.S. Dep. at 42, 29, 50, 61.) B.P. could not identeythe students who
participated and did not report the incident to any school official (B.P. Dep. at 46.) AP. did not report the
incidents to any teacher or administrator. (DSMF ~ 318; A.P; Dep. at24, 32.)
M.B. testified that, at various times, students sJamrred Tyler's head into a hair dryer, closed a bathroom door on
him, threw iterm over the bathroom stall that hit him, and pulled his pants down and threw stuff at him. (PSMF
W12, 17, 35, 38, 42; M.B. Dep. at 25-26, 37-39.) No fucuhymember observed those incidents, and M.B. did
not report the incidents to any fuculty members. (M.B. Dep. at 39 .)
A.P. testified that a student tripped Tyler while he was walking down the bleachers and Tyler full down the
bleachers. (PSMF ~ 16; AP. Dep; at 5, 8.) A.P did not report the incident to any teacher or administrator.
(AP. Dep. at24, 27.)
8. Middle School and Elementary Schoor'7
In December 1998, Ms. Long took Tyler to Dr. David A. Solovey; Psy.D., a private psychologist, for a
comprehensive evaluation cuhninatirlg in receipt by the school system :in Apri11999 ofDr. Solovey's written
report containing the results ofvarious psychometric testing. (DSMF ~ 256; Oxford Aft:~ 12, Ex. E.) In his
April report, Dr. Solovey provided the fuDowirlg diagnoses: adjustment disorder with depression, obsessive
compu1sive features present; comrmmication disorder-- receptive expressive Janguage disorder; phono1ogical
disorder; neurological distmbance revealing problems :in the areas of eye tracking, sound patterning, gross motor
coordination. (DSMF ~ 257; Oxford Aft:~ 13, Ex. E.) FoUowirigreceipt ofa letter dated March3, 1999 from
Dr. Solovey, DerendantMCSD began providing Tyler with special education services, specifically speech
therapy. (DSMF ~ 255; Oxford Aff ~ 11, Ex. D.)
On January 24, 2005, PJaintiflS took Tyler to Dr. Mohammad Ahmad, M.D., a private psychiatrist at Atlanta
Behavioral Medicine. (DSMF ~ 265; Oxford Aft:~ 18, Ex. J.) Dr. Ahmad o:ffured the following diagnosis:
Attention Deficit Hyperactivity Disorder (''ADHD'', Oppositional Defiant Disorder ("0DD'', Bipo1ar Disease,
and Asperger's. (Id.) Upon a return visit on January 31, 2005, the diagnosis changed slightly to Attention Deficit
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Disorder (''ADD'~ and Asperger's, and Dr. Ahmad prescribed the medication Risperdol (DSMF ~ 266; Oxfurd
AfE ~ 18, Ex. J.)
On April26, 2006, the school psychologist conducted a psycho-educational evaluation and concluded that Ty1er
had a very high probability ofAsperger's, and that his adaptive behavior quotient was in the lower average range,
meaning that he was deficient in "social skills, commmication, and comrmmity use." (DSMF ~ 287; Oxford Aft: ~
33, Ex. Y.)
In March 2007, P1a:intiflS decided to withdraw the psychotropic medications prescribed by Tyler's pediatrician.
(DSMF ~ 298; T. LongDep. at 231; DeiS. i. Mot. Sunm J. Ex. A.) After March 30, 2007, Tyler's records from
the Chi1dren's Doctors, P.C. do not refur in any way to subsequent prescriptions ofeither Risperdol or Zoloft or
the monitoring ofwithdrawals ofthese medications. (DSMF ~ 299; DeiS. Mot. Sunm J. Ex. A.)
9. Expert Testimony
a. Barbara Co1oroso
Ms. Co1oroso testified that Defendants :tailed to use diligence in recognizing and responding to the repeated, ·
contirmous, and ongoing physica~ verb~ and re1ational bullying. (PSMF ~ 239; DRPSMF ~ 239 (arguing that
Ms. Co1oroso's opinion is immateria~ based on personal opinion, and invades the province ofjmy, and that Ms.
Co1oroso 1acks experience to offer such opinion); Docket Entry No. 72 ("Coloroso Expert Report'~ at 2:)48
According to Ms. Co1oroso, MCSD's anti-bullying policy was not c1early articuJated, consistently enfurced, or
broadlycommmicated. (PSMF ~241; Coloroso Expert Report at 1, 12.) Ms. Coloroso opined that Defendants
fuiled to follow mandatory disciplinary procedures when Tyler, his teachers, his parents, and his c1assmates made
comp1aints concerning the ongoing bullying. (PSMF ~ 242; Co1oroso Expert Report at 5.) According to Ms.
Co1oroso, Defendants' fililure to have a clearly defined and articuJate anti-bullying policy contributed to this
fuilure. (PSMF ~ 243; Co1oroso Expert Report at 5.)
Ms. Co1oroso testified that properly following through on bullying incidents woukl have enabled school persomel
to provide more effective support to Tyler. (PSMF ~ 244; Co1oroso Expert Report at 1-2.) Ms. Coloroso
opined that the response ofat Jeast two teachers led students to believe that Tyler was filir game for the students'
. harassment. (PSMF ~ 245; Coloroso Expert Report at 9.) According to Ms. Coloroso, the MCHS Student
Handbook does not contain a c1early-de:fined harassment disability policy, nor does it contain necessary
procedures and progra.tm to e:trectively prevent, report, and/or respond to acts ofdisability harassment. (PSMF
~ 247; Co1oroso Expert Report at 7.)
Ms. Co1oroso testified that, in her opinion, Defendants fililed to develop an adequate IEP relevant to the needs
ofa student with Asperger's. (PSMF ~ 248; Coloroso Expert Report at 8.) Ms. Coloroso exp1ained that
Defendants :tailed to train educators and students on: (1) the elements ofAsperger's that woukl make a student
more vulnerable to targeting; (2) the bullying ofk:ids with disabilities; and (3) effective teaching teclmiques, report
and discip1ine procedures, and progra.tu; to help create a welcoming climate for students with disabilities. (PSMF
~ 249; Co1oroso Expert Report at 11.) Ms. Co1oroso opined that Ty1er's teachers shoukl have been informed
and educated about his disability and given a copy ofhis IEP to mderstand his behavior and the risk oftargeted
peer harassment. (PSMF ~ 250; Coloroso Expert Report at 11-12.)
b. Jason Andrews
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Pla:inti.flS' expert Jason Andrews concluded that Defundants :tailed to take appropriate steps to prevent
harassment. (PSMF ~ 253; DRPSMF ~ 253 (arguing that statement is legal conclusion); Dep. of Jason Andrews
at 40.)49 Mr. Andrews testified that Defundants :tailed to rreet genera]]y accepted standards fur schools and
educational administrators. (PSMF ~ 254; Andrews Dep. at 40.) Mr. Andrews testified that there were no c1ear
reporting procedures or expectations in p1ace for teachers to report bullying incidents to. administrators. (PSMF
~ 256; Andrews Dep. at 119.)
According to Mr. Andrews, Tyler's IEP was an inappropriate acconnrodation, and allowing Tyler to leave c1ass
ear]y singled him out and caused him to miss portions ofclasses, which negative]y impacted his education.
(Andrews Dep. at 168.) Mr. Andrews opined that Defundants vio1ated national standards requiring that MCHS
provide Tyler's counselors and teachers with his IEP. (Id. at 177-79.) According to Mr. Andrews, the school
:tailed to provide adequate training regarding Asperger' s bullying and buassrrent to students· and teachers. (!d. at
222;.23.)
Mr. Andrews testified that Defundant Linder vio1ated profussional standards by assigning all discipline to
assistant principals and :tailing to fullow-up with and supervise students in the halls and cafuteria. (Andrews Dep.
at 177-79.) According to Mr. Andrews, the school :tailed to create an effective system whereby teachers were
expected to report inappropriate behavior or a specific procedure for reporting bullying incidents to
administrators. (Id. at 236-38.)
c. Dr. Marc Einhorn
Dr. Einhorn perfurrred a differential diagnosis and a psychological autopsy analysis ofTyler's suicide and
concluded that Tyler's suicide was
caused ''by years ofbullying in the Murray County Schools through the 1ast
\.:.
day ofhis lifu." (Docket Entry No. 89-1 (''Einhorn Supplemental Expert Report) at 11.)50
B. Procedural Background
P1a:inti:ffi; filed this .case on January 29, 2010 against Defundant MCSD and Defundant Linder in her individual
and official capacity as Principal ofMurray County High School (Docket Entry No. 1.) On February 25, 2010,
P1a:inti:ffi; filed an Amended Comp1aint against all Defundants. (Docket Entry No. 3.) PJaintifiS allege :federal
clairm under42 U.S.C. § 1983, § 504 ofthe Vocational Rehabilitation Act of1973, 29 U.S.C. § 794 ("§ 504'~
and Title IT ofthe Americans with Disabilities ACt, 42 U.S.C. § 12132 (the "ADA'~. (Am Compl ~~ 31-62.)
P1aintifiS also allege a state law public nuisance c1aim. (Id. ~~ 63-67.) P1aintifiS seek attorney's fues under 42
U.S.C. § 1988, as well as compensatory and punitive damages. (Id. §§ 68-72.)
On December 16, 2011, Defundants filed a Motion to Exclude PJaintifiS' Experts Barabara Coloroso, Jason,
Andrews, and Marc Einhom (Docket Entry Nos. 101-103.) On Aprill8, 2012, the Court denied Defundants'
Motion to Exclude P1ainti:BS' Experts Marc Einhorn and Jason Andrews, and granted in part and denied in part
Defundants' Motion to Exclude P1aintifiS' Expert Barbara Coloroso. (Order ofApril18, 2012.) The Court
granted the Motion as to Ms. Coloroso's general and specific causation opinions, but denied the Motion as to
Ms. Coloroso's opinions concerning Defendants anti-bullying policies. (Id.)
On December 20, 2011, Defundants filed their Motion fur Smmnary Judgment.. (Docket Entry No. 107.) On
March 15, 2012, P1ainti:BS filed a Motion to Strike or Have the Court Disregard Defundants' Staterrent of
Alleged Material Facts and Strike the Bneffur Substantial Noncompliance with the Ru1es. (Docket Entry No.
173.) OnApril20, 2012, the Court denied P1aintiflS' Motion to Strike. (Order ofApr. 20, 2012.) On March
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15, 2012, P1aintifiS fi1ed a response in opposition to Defendants' Motion for Summary Judgment (Docket Entry
No. 176.) OnApril2, 2012, Defendants filed a reply in support oftheir Motion for Summary Judgment
(Docket Entry No. 186.) The briefing process for this Motion is complete, and the Court finds that the Motion is.
ripe for resohltion
II. Smmnary Judgment Standard
Federal Rule ofCivil Procedure 56(c) authorizes smnmary judgment when ''there is no genuine issue as to any
PBterial met" and ''the tmving party is entitled to a judgment as a matter of1aw." Fed. R Civ. P. 56(c). The
party seeking summaryjudgment bears the initial burden ofshowing the Court that summaryjudgment is
appropriate, and may satisfY this burden by pointing to materials in the record. Reese v. Herbert, 527 F .3d
1253, 1269 (llthCir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986));Allen v. Bd. of
Public Educ.for Bibb County, 495 F.3d 1306, 1313 (llthCir. 2007). Once the tmvingpartybas supported
its motion adequately, the non-tmvant has the burden ofshowing summary judgment is improper by coming
forward with specific filets that detmnstrate the existence ofa genuine issue for trial Allen,. 495 F .3d at 1314.
When evaluating a tmtion for smmnaryjudgment, the Court nmst view the evidence and all factual inferences in
the light tmst favorable to the party opposing the motion Optimum Techs., Inc., 496 F .3d at 1241. The Court
also nmst '"resolve all reasonable doubts about the fucts in fuvor ofthe non-tmvant."' Rioux v. City ofAtlanta,
Ga., 520 F.3d 1269, 1274 (11thCir. 2008) (quoting United ofOmaha Life Ins. Co. v. Sun Life Ins. Co. of
Am., 894 F.2d 1555, 1558(llthCir. 1990)). Further, the Courtmaynotmake credibility determinations,
weigh conflicting evidence to resolve disputed factual issues, or assess the quality ofthe evidence presented.
Reese, 527 F.3d at 1271; Skop v. City ofAtlanta, Ga., 485 F.3d 1130, 1140 (llthCir. 2007). Finally, the
Court does not make factual determinations, In re CelotexCorp., 487 F.3d at 1328.
m. Discussion
A. § 1983 C1aims
1. Equal Protection
P1ainti:HS abandoned their equal protection cJaimby fulling to address it in their response to Defendants' Motion
for Sunmuy Judgment Kramer v. Gwinnett County, Ga., 306 F. Supp. 2d 1219, 1221 (N.D. Ga. 2004) ("
[A] party's fuihlre to respond to any portion or c1aim in a trotion indicates such portion, c1aim or defense is
unopposed.'~; Hudson v. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001) ('When a party
fui1s to respond to an argument or otherwise address a c1aim, the Court deems such argument or c1aim
abandoned.'~. The Court consequently grants Defendants' Motion for Summary Judgment as to PJaintifiS' equal ·
protection c1aim.
2. Substantive Due Process
P1ainti:OS argue that Defendants' failure to intervene, to train its employees to account for, or to otherwise provide
for Tyler's protection at MCHS exhibits "deliberate indiffurence towards their affirmative duty to protect [Tyler]
and deprived [Tyler] ofhis liberty interest to be free from psychological and bodily abuse .... "(Am. Compl ~
34.)
'"[T]he Due Process C1ause was intended to prevent governtlXnt officials from abusing their power, or
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employing it as an instnnnent ofoppression'" Davis v. Carter, 555 F.3d 979, 980 (11th Cir. 2009) (quoting
County ofSacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 1716, 140 L.Ed.2d 1043 (1998))
(internal quotations and citations omitted). 'The substantive component ofthe Due Process Clause 'protects
individual liberty against certain government actions regard1ess ofthe :fairness ofthe procedures used to
implement them'" Id.(quoting Collins v. City ofHarker Heights, 503 U.S. 115, 125 (1992)).
"[N]otbing in the language ofthe Due Process Clause itse1frequires the State to protect the lifu, liberty, and
property ofits citizens against invasion by private actors. The Clause is phrased as a limitation on the State's
power to act, not as a guarantee ofcertain mininnnn 1evels ofsafety and security." DeShaney v. Winnebago
County Dept. ofSocial Services, 489 U.S. 189, 195 (1988). PlaintifiS allege that Defendants :tailed to protect
Ty1er from harm inflicted by private actors. OnJy "in certain limited circlDDStances," however, does ''the
Constitution impose[ ] upon the State affirmative duties ofcare and protection with respect to particular
individuals." Id. at 198. "[T]he only relationships that automatically give rise to a governmental duty to protect
individuals from hann by third parties under the substantive due process clause are custodial relationships, such
as those which arise from the incarceration ofprisoners or other furms ofinvohmtaty confinement through which
the govel111Dent deprives individuals oftheir liberty and thus oftheir ability to take care ofthemselves.'" Forrester
v.Stanley, 394 F. App'x673, 675 (llthCir. 2010) (quoting White v. Lemacks, 183 F.3d 1253, 1257 (11th
Cir. 1999)).
In Wyke v. Polk County School Bd., 129 F .3d 560, 569 (1997), the Eleventh Circuit hekl that mandatozy
attendance Jaws do not create a '"restraint ofliberty' sufficient to give rise to an affirmative duty ofprotection" fur
public schools to protect students against privately inflicted hann. Wyke, 129 F.3d at 569; see also
Worthington v. Elmore County Bd. ofEduc., 160 F. App'x 877, 881 (11th Cir. 2005) (holding that student
with ''menta~ etmtiona~ and behavioral disabilities" does not have special relationship with public school). Like
the Eleventh Circuit, "eachcircuit to have addressed the issue has concluded that public schools do not have a
special relationship with their students, as public schools do not place the same restraints on students' liberty as
do prisons and state mentalheahhinstitutions." Doe ex rel. Magee v. Covington County School Dist. ex rel.
Keys, 675 F.3d 849, 858 (5th Cir. 2012) (citing Hasenfus v. LaJeunesse, 175 F.3d 68, 69-72 (1st Cir.
1999) (fourteen-year-old student attempted suicide after being sent unsupervised to a locker room); D.R v.
Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1366, 1370-73 (3d Cir. 1992) (en bane)
(sixteen-year-o1d student was sexually assaulted by fellow students in mrisex bathroom and darkroom, both of
which were part ofclassroom where teacher was present during attacks); Stevenson ex rel. Stevenson v.
Martin Cnty. Bd. ofEduc., 3 F. App'x25, 27,30-31 (4thCir. 2001) (ten-year-o1d student assaulted by his
classmates); Doe v. Claiborne Cnty., Tenn., 103F.3d 495, 500-01, 509-10 (6th Cir. 1996) (fourteen-year
o1d student sexually assaulted by an athletic coachoffschoolgrounds); .1.0. v. Alton Cmty. Unit Sch. Dist. I 1,
909 F .2d 267, 268, 272-73
(7th Cir. 1990) (teacher sexually tmlested two "school-age chiklren'); Dorothy.!.
'
v. LittleRock Sch. Dist., 7 F.3d 729,731-34 (8thCir. 1993) (intellectuallydisab1edbighschoolboywas
sexually assaulted by another intellectually disabled student); Patel v. Kent Sch. Dist., 648 F.3d 965, 968-69,
972-74 (9th Cir. 2011) (developmentally disabled high school student was sexually assaulted by classmate when
she was permitted to use restroom alone even though her parents specifically requested that she be under aduh
supervision at all times due to her disability); Maldonado v. Josey, 975 F.2d 727, 728, 729-33 (lOthCir.
1992) (eleven-year-o1d boy died ofaccidental strangulation in an unsupervised cloakroom adjacent to his
classroom during the school day).) Under those circllll.Etances, the Court finds that a custodial relationship did
not exist between Defendants and Tyler, and that Defendants did not have a constitutional duty to ensure Tyler's
safety from private actors.
'
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Alternatively, PJa:int:ifiS argue that Defundants had a constitutional duty to protect Tyler under the state-created. or
"special danger" theory. In White, however, the Eleventh Circuit dec1ared the "special danger" doctrine
established in Cornelius v. Town ofHighland Lake, 880 F.2d 348, (11th Cir. 1989) to be "dead and buried"
after Collins v. City ofHarker Heights, 503 U.S. 115, 127 (1992). White, 183 F.3d at 1259. The Eleventh
Circuit fuund that, where non-custodial re1ationships are involved, "state and local government officials vio1ate the
substantive due process rights ofindividua1s not in custody only when those officials cause harm by engaging in
conduct that is 'arbitrary, or conscience shocking, in a constitutional sense,' and that standard is to be narrowly
interpreted and app1ied." Id. at 1259. The Comt consequently cannot find that Defundants had a constitutional
duty to protect Tyler from harm. 51
Absent a custodial reJationship, allegations ofde1iberate :ind.ifierence are insufficient to establish a substantive due
process cJaim. Davis, 555 F.3d at 984; see also Nix v. Franklin County School Dist., 311 F .3d 1373, 1378
(11th Cir. 2002) ("[C]ourts have not aDowed due-process liability fur de1iberate :ind.ifierence, and, tmreover, will
only allow recovery fur intentional conduct under limited circl.lliEtances.'). Instead, Defundants' conduct will ''rise
to the level ofa substantive due process vio1ation only ifthe act can be characterized as arbitrary or conscience
shocking in a constitutional sense." Id. at 982 (citing Lewis, 523 U.S. at 846). 'The concept ofconscience
shoclcing conduct 'duplicates no traditional category ofconnnon-Jaw muh, but rather points clearly away from
liability, or clearly toward it, only at the ends ofthe tort Jaw's spectrum ofculpability."' Id. (citing Lewis, 523
U.S. at 848). 'The Supren:x.=, Court has made clear 'the due process guarantee does not entail a body of
constitutional Jaw imposing liability whenever son:x.=,one cloaked with state aUthority causes harm."' !d. (quoting
Lewis, 523 U.S. at 548. "Thus, 'the Fomteenth Amendment is not a 'funt oftort Jaw' that can be used, through
section 1983, to convert state tort cJaims into fuderalcauses ofaction."' Id. (quoting Neal v. Fulton County
Bd. ofEduc., 229 F.3d 1069, 1074 (llthCir. 2000)). 'To rise to the conscience-shockingleve~ conducttmst
Jik:ely must be '"intended to injure in son:x.=, way ~ustifiable by any government interest [.]"'!d. (citing Lewis,
523 U.S. at 849).
For the fullowing reasons, the Comt cannot find that Defund.ants' conduct rose to the conscience-shocking level
Defundants' alleged acts ofmistreatment do not suggest that Defundants acted with intent to injure. Eleventh
Circuit courts have only held that the conduct ofa high-school educator shocks the conscience ''in the Jimited
context ofdue-process cJa.im;; based on excessive corporalpunislnnent." Nix, 311 F.3d at 1378; see also
Dacosta v. Nwachukwa, 304 F.3d 1045 (11th Cir. 2002) (finding no substantive due process vio1ation where
instructor intentionally s1anmed door on student, causing her arm to shatter g]ass window, knocked student back
by swinging door violently, and shoved student's :face through cracked pane). PlaintiftS' allegations that
Defundants fu.iled to train and provide adequate protection fur Tyler, ·despite actual knowledge ofhis ~ability
and pervasive bullying, at best establish negligence or de1iberate :ind.ifierence. Extending the protections ofthe
Fomteenth Amendment to the case at bar would ''balloon this circuit's due-process jurisprudence well beyond its
c~nt confines." Id. at 1379. Under those circl.lliEtances, even viewing the evidence in a light tmst :favorable to
Defundants, the Comt cannot find that Defundants' actions can be characterized as arbitrary or conscience
shocking in a constitutional sense. Because PJaintiflS fuil to establish a constitutional vio1ation, 'the Court grants
sunnnaryjudgment in :favor ofDefundants as to PJa:in.tiflS' § 1983 c1aims against Defun<iant MCSD and
Defundant Linder in her official and individual capacities.52
B. ADA and § 504 CJa:ims
PJainti:BS assert c:Ja.im; under Title IT ofthe ADA and § 504 ofthe Rehabilitation Act. Title IT ofthe ADA
provides that ''no qualified individual with a disability shaD, by reason ofsuch disability, be exchlded from
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.
participation in or be denied the benefits ofthe services, programs, or activities ofa public entity, or be subjected
to discrimination by any such entity." 42 U.S. C. § 12132. Section 504 ofthe Rehabilitation Act likewise
provides that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of
her or his disability, be exchlded from the participation in, be denied the benefits o( or be subjected to
discrimination under any program or activity receiving Federal :financial assistance." 29 U.S.C. § 794(a).
To establish a claimunder either § 504 or the ADA against a school receiving federal assistance :fi.mding, a
plaintiffshow that he or she: "(1) had, or was perceived to have, a 'disability'; (2) was a 'qualified' individua~ and
(3) was discriminated against because ofher disability." Carruthers v. BSA Advertising, 357 F.3d 1213, 1215
(11th Cir. 2004). ''The discrimination requirement
'is rooted in two parts ofthe statute's text: plaintifi:S nrust prove that they have either been subjected to
discrimination or excluded from a program or denied benefits solely by reason oftheir disability. To prove
discrimination in the education context, something more than a mere fuilure to provide the free appropriate
education required by [the IDEA] nrust be shown.'"
S.S. v. Eastern Kentucky Univ., 532 F .3d 445, 453 (6th Cir. 2008) (quoting Sellers v. Sch. Bd. of
Manassas, 141 F .3d 524, 528-29 (4th Cir. 1998)). It is undisputed that Plaintiffsuffered from a disability and
was otherwise qualified for educational benefits.
PlaintifiS argue that the Comt should evaluate the discrimination prong lD:lder the analytical framework set furth in
Davis v. Monroe County Bd. ofEduc., 526 U.S. 629, 633 (1999). Ahhougb.Davis addresses Title IX liability
fur peer-on-peer sexual harassment, comts have applied the case Jaw and reasoning governing Title IX peer-on
peer sexual harassment claims to § 504 and ADA peer-on:..peer disability harassment claims. S.S., 532 F .3d at
453 (6th Cir. 2008); Doe v. Big Walnut Local School Dist. Bd. ofEduc.,
F. Supp. 2d
, No.
2:09-cv-0367, 2011 WL 3204686 (S.D. Oh. Jul27, 2011); Werth v. Bd. ofDirs., 472 F. Supp. 2d 1113,
1127 (E.D. Wis.2007); K.M v. Hyde Park Central School Dist., 381 F. Supp. 2d 343,359 (S.D.N.Y.
2005); Biggs v. Bd. ofEduc., 229 F. Supp. 2d 437, 445 (D. Md. 2002). Ahhough the Eleventh Circuit has not
directly addressed the applicability ofthe Davis framework to disability harassment claims, the Comt applies the
Title IX framework set fOrth in Davis. 53
Federal comts have established a five-part test that a plaintiffnrust satisfY to state a claimlD:lder the ADA and§
504 for peer-on-peer disability harassment:
(1) the plaintiffis an individual with a disability, (2) he or she was harassed based on that disability, (3) the
harassment was sufficiently severe or pervasive that it a1tered the condition ofhis or her education and created an
abusive educational environment, (4) the defendant knew about the harassment, and (5) the defendant was
deliberately indifferent to the harassment.
S.S., 532F.3d at 453. The Comt addresses the required elements in turn.
1. Disability
The wdisputed evidence shows that Tyler qualifies as an individual with a disability. In 2005, Tyler was
diagnosed with Asperger's, and a school psychologist conchlded that Tyler was deficient in "social skills,
connmmication, and community use." (Oxfurd Aff , 18, Exs. Y, J.)
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2. Harassment Based on His Disability
Defendants argue that there is no evidence that students harassed Tyler based on his disability. PJa:intifiS'
evidence, however, shows that students caDed Tyler ''retard," "slow," ":faggot," and "stupid." (C.H. Dep. at 29
30; M.B. Dep. at 30.) Ms. Longmire disciplined students fur picking on a "special needs student," and students
testified that students picked on Tyler because he was "autistic," "diflerent," and "a little slow or diflerent." (M.B.
Dep. at 25; M.T.M. Dep. at 20.) Under those circmmtances, the Comt finds that PJa:intifiS' evidence is sufficient
to create an issue of:fact as to whether Tyler was harassed based on his Asperger's and deficient social skills.
3. Severity and Barred Educational Opportunities
Under Eleventh Circuit Jaw, a Title IX p1aintiffseeking damages fur student-on-student harassment mJSt show
that ''the behavior is so severe, pervasive, and objectively offensive that it denies its victitm equal access to
. education/' Hawkins v. Sarasota County Sch. Bd., 322 F.3d 1279,1288 (11th Cir. 2003) (citing Davis, 526
U.S. at 650). ''The behavior must be serious enough to have the systemic effect ofdenying the victim equal
access to an educational program activity." !d. To have a systemic effect ofdenying the victim equal access to an
educational program or activity, the "discrimination must be more widespread than a single instance ofone-on
one peer harassment" !d. at 1289. Instead, the effects ofthe harassment ''must touch the whole or entirety ofan
educational program or activity." !d. 'Whether [disability] oriented conduct rises to the level ofactionable
harassment often depends on a constellation ofsurrounding circmnstances, expectations, and reJationships,
including, but not limited to, the ages ofthe harasser and victim, and the mnnber of individuals involved." !d. at
1288 (citing Davis, 526 U.S. at 651).
The Eleventh Circuit has observed:
When interacting with each other, children often exhibit behavior that woukl be wholly unacceptable between
adults. ''The real world ofschool discipline is a rough-and-tumble pJace where students practice newly learned
vulgarities, erupt with anger, tease and embarrass each other, share offensive notes, flirt, push and shove in the
halls, grab and offend." BriefofAmici Curiae National School Boards Ass'net al at 11, Davis, 526
U.S. 629,
.
.
119 S. Ct. 1661,143 L. Ed. 2d 839 (1999) (No. 97-843.) In the school setting, students often engage in
insults, teasing, showing, and gender-specific conduct that is upsetting to the student subjected to it. Damages are
not avaiJable fur simple acts ofteasing and mere name-calling among school chiklren even where those
comments targetdiflerences in gender. Davis, 526 U.S. at651-52, 119 S. Ct. at 1675.
Hawkins, 322 F.3d at 1288. The Supreme Comt a1sohas noted that ''the most obvious example ofstudent-on
student harassment capable ofdenying a victim access to education and thus triggering a damages c1aim wou1d
involve overt, physicaldenialofaccess to school resources." Davis, 526 U.S. at 650-51. Examples ofsuch
situations include circmnstances in which m;t]e students physically threatened female students daily and thereby
successfully prevented the female students ftom using a computer Jab or athletic field. !d.
"A demonstration ofphysical exclusion, however, is not the sole means by which a pJaintiffcan demonstrate
deprivation ofan educational opportunity." Hawkins, 322 F .3d at 1289. Instead, a pJaintiffcan demonstrate
''that the behavior so l.Uldermines and detracts from the victims educational experience, that the student has
effectively been denied access to an institutions resources and opportunities." !d.
One comt has noted that harassment ''must have a 'concrete, negative effect' on the victims education."
Gabrielle M v. Park Forest-Chicago Heights, lll. Sch. Dist. 163, 315 F.3d 817, 821 (7th Cir. 2003)
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(quoting Davis, 526 U.S. at 624). Examples ofsuch an effect can include "dropping grades, becoming homebound or hospitalized due to harassment, or physical violence." !d. (citations omitted). Defendants argue that, ifTyler were alive today, PJaint:i:fiS would not have enough evidence to state a claim tmder
§ 504 and the ADA. According to Defendants, PJaint:i:fiS have no evidence that anything Tyler experienced at
MCHS deprived him ofaccess to educational opportunities or benefits provided by the school In Big Walnut,
the court found that the environment at BigJ Walnut Middle School was not abusive or hostile because John Doe
excelled academically, never had problems with attendance, and participated :in school activities such as
wrestling. Big Walnut, 2011 WL 3204686. Derendants contend that, like John Doe, the evidence shows that
Tyler excelled academically, never had any problems with attendance, and successfully participated in the
JROTC program According to Derendants, a school cannot be the guarantor ofa student's emotional well
being. The only thing a school can do is give each student reasonable and equal access to the educational
opportunities and benefits that it has to offer. Defendants argue that the evidence shows that MCHS
administrators and teachers successfully ensmed that harassment did not lm.dennine tyler's educational
opportunities.
For the following reasons, however, the Court finds that PJaintifiS' evidence is sufficient for a jmy to concWe that
the harassment ofTyler was sufficiently severe and pervasive that it ahered the condition ofhis education and
created an abusive educational environment. First, the evidence shows that Tyler suffered harassment that went
well beyond the bounds of''teasing and mere name-calling among school children." PJaintiffS provide a wealth of
evidence establishing that Tyler suffered from severe, nearly constant bullying. Students called Tyler names and
pushed him in the hallways nearly "every day," students harassed Tyler in his Spanish, English, math, and guitar
cJass, and witnesses reported numerous :incidents ofstudents picking on Tyler in the bathroom and the careteria.
In addition, there is evidence ofmnnerous :incidents ofphysical bullying. Under those circmnstances, the Col.lli
finds that the harassment was severe and pervasive.
Second, the Court finds that a question offucts·exists as to whether the harassment barred Tyler from
educational opportunities. In Hawkins, although two ofthe pJaint:i:fiS faked being sick "fom or five times :in order
to not go to schoo~" the court fulm.d that the pJaintifiS did not demonstrate a concrete, negative effect on their
ability to receive an education because the evidence showed that the pJaint:i:fiS maintained good grades and no
teachers observed a change in their demeanor or cJass participation. Hawkins, 322 F.3d at 1289.54 In ,
Hawkins, the court contrasted the pJainti:flS' experience to the pJa:intiff:inDavis, whose futher follll.d a suicide
note, to thephysicallydisabledpJaintiffinMurrellv. Sch. Dist. No.1, Denver, Colo., 186 F.3d 1238, 1244
(10thCir. 1999), who began to engage :inse:tf:.destructive and suicidal behavior, and to the pJaintiff:in Vance v.
Spencer County Pub. Sch. Dist., 231 F.3d 253, 257 (6th Cir. 2000), who was dlagnosed with depression and
withdrew from school Here, the evidence ofdeprivation is stronger than in Davis, Murell, or Vance. PJa:intifiS
provide evidence that the years ofharassment ultimately caused Tyler to connnit suicide -- necessarily barring
Tyler from educational opportunities. (Einhorn Supplemental Expert Report at 11.)55 The Com consequently
finds that PJainti:flS' evidence is sufficient to create an issue offuct as to whether disability harassment deprived
Tyler ofaccess to educational opportunities.
4. Actual Knowledge
To establish a disabilityharassmentcJaim, "[a]n 'appropriate person' nrust have actual knowledge ofthe
discrimination or harassment the pJaintiffalleges occl.D.'red." Williams v. Board ofRegents of Univ. Sys. of Ga.,
477 F.3d 1282, 1293 (11th Cir. 2007) '"[A]nappropriate person ... is, at a minimum, an official ofthe recipient
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entity with authority to take corrective action to end the discrimination"' !d. (quoting Gebser v. Lago Vista
Indep. Sch. Dist., 524 U.S. 274,290 (1998)) (internalquotationmarksomitted; omission in original).
For the fOllowing reasons, the Comt finds that Defendants had actual knowledge ofnmch ofthe disability
harassrrent alleged by PJaintifiS. Defendants fucus on the incidents described by the students who testified after
Tyler's death. Defendants correctly point out that many ofthe students described the ''bullying'' incidents only in
generalt:errm, that only two ofthe students reported the incidents, and that those students reported the incidents
to teachers, not to administrators. AdditionaDy, Defendants argue that the appropriate persons had no notice or
infOrmation that Tyler was potentially suicida1, even after PJaintifiS took Tyler to a psychologist because ofthat
very concem According to Defendants, P1aintifiS did not alert the school that Mr. Long round Tyler p1aying with
a belt, that Tyler was wearing adult diapers, or that Tyler was sutrering from any kind ofacute rrental dec1ine.
For the purposes ofthis claim, however, the issue befOre the Comt is not whether appropriate persons had
actual notice that Tyler was a suicide risk, but whether Defendants had actual notice ofdisability harassment of
Tyler. For the fOllowing reasons, even ifthe Comt excludes any reference to bullying incidents that the witness
did not report to an appropriate person, there is sufficient evidence fur the Comt to find that appropriate persons
had actual notice ofharassrrent ofTyler.
In Doe v. School Bd. ofBroward County Fla., 604 F.3d 1248,1256 (11th Cir. 2010), the comt noted that
the ultimate questionofwho is an appropriate person is 'necessarily a met-based inquiry' because 'officia)s' roles
vary among school districts." Broward, 604 F.3d at 1256 (quoting Murrell, 186 F.3d at 1247). The Court
finds that Defundant Linder, the principal ofthe school With final authority to ''take corrective treasures," quaJifies
as an appropriate person !d. (hokling that school principal quaJifies as final decision maker; collecting cases). In
addition, in MCSD, the evidence indicates that Defendant Linder delegated disciplinary duties to Mr. Thornbmy
fur ninth grade and Mr. Swilling fur tenth and eleventh grade. The Comt finds that this evidence is sufficient to
create an issue ofmet as to whether Mr. Swilling and Mr. Thornbmy qualifY as appropriate persons. See
Seiwert v. Spencer-Owen Cmty. Sch. Corp., 497 F. Supp. 2d 942, 948 (S.D. Ind. 2007) (finding assistant
principal to be "appropriate person'). In addition, in the interest ofcreating a thorough record, the Court includes
incidents where Ms. Bower or Ms. Gaihnan -- school comselors -- had notice ofdisability harassrrent ofTyler.
In September 2007, Ms. Long sent an email to Ms. Bowers expressing concern about Mr. Archie, as well as
other students, mistreating Tyler in Mr. Archie's class. (Bowers Aft: ~ 11.) AJso in September 2007, Ms. Long
reported to Ms. Bowers that a boy had spit in Tyler's hmch. (!d. ~ 14.) Ms. Bowers fOrwarded both emaiJs to
Mr. Swilling. (!d.) In November 2007, Ms. Bowers and Ms. Harkleroad discovered that Tyler had been tripped
in the gym (Harkleroad Aft: ~ 3, Ex. A.) AJso inNovember 2007, Ms. Long emailed Defendant Linder and
reported nmnerous instances ofharassrrent. (Linder Aft: Ex. A) In the letter, Ms. Linder alleged thatMr. Archie
called Tyler ''leave rre alone Long," that an midenti:fied student destroyed Tyler's clothes and rubbed his privates
on Tyler, and that an unidentified girl called Tyler a sissy and hit him in the mce. (!d.) Later inNovember 2007,
Ms. Long notified Ms. Bowers and Mr. Swilling that sorreone was kicking Tyler while he was waiting fur the
bus. (Bowers Aft: ~ 20.) On November 26, 2007, PJaintifiS rret with Defendant Linder and Ms. Thomason and
discussed Tyler's autism and harassrrent. (Linder Af[ ~ 5.)
· In January 2008, Plaintiffemailed Mr. Swilling concerning harassrrent on the bus. (Swilling Af[ ~ 5.) In April
2008, Tyler reported to Ms. Harkleroad that two students were sexualJy harassing him, and Ms. Harkleroad
referred the matter to Mr. Swilling. (!d. W6-7.) AJso in spring 2008, Ms. Bowers observed students teasing
Tyler in the hallway. (Bowers Dep. at 30.)
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In August 2008, Tyler reported to Ms. Galhnanthat a student was spreading rumors that Tyler ''is gay and looks
at gaypom" (GaThnanDep. at24-25, Ex. 1.) In September 2008, Tyler reported to an incident ofphysical
abuse by J.B. and B.M. to Mr. Thornbury. (Thornbury Aff ~ 5.) Also in September 2008, Mr. Longmire .
reported to Mr. Thornbury that students picked on Tyler in his chemisttycJass. (Longmire Aff ~ 4.) In October
2008, Ms. Meade reported to Mr. Thornbury that a student said something unkind to Tyler in Spanish class.
(Meade Aff W4-5.) InNovember 2008, Ms. Gibson reported to Mr. Thornbury that a student kicked Tyler in
the ball. (Gibson Aff ~ 5, Ex. A.) In.December 2008, Ms. Meade reported to Ms. Galhnan that a student
bmnped his head into Tyler's :fingers in Spanish cJass. (GallmanDep. at 35.) At that titre, Tyler reported to Ms.
Galhnan that people picked on him "daily." (!d. at 36.)
Given the above facts, even ifthe Court excludes incidents not reported, incidents reported onJy to teachers, and
incidents reported only to Ms. Galhnan or Ms. Bowers, the Court finds that PlaintiflS' evidence is sufficient to
create a material issue offu.ct as to whether appropriate persons had actual knowledge ofthe harassment.
5. Deliberate Indifference
a. Relevant Law
When considering deliberate indiffurence, courts :fOcus on ''the conduct ofthe funding recipient, not the alleged
harasser." Williams, 477 F .3d at 1293. "[A] school district is not deliberately indifrerent simply because the
measures it takes are ultimately ine:trective in stopping'; harassment. Sauls v. Pierce County School Dist., 399
F .3d 1279, 1285 (11th Cir. 2005). A p1aintiffmust show ''that the. [school districfs] deliberate indifrerence to the
initial discrimination subjected the p1aintiffto :finther discrimination." Williams, 477 F.3d at 1296. 'Deliberate
indifference is an e:Xacting standard; school administrators will onJy be deemed deliberately indifrerent iftheir
'response to the harassment or 1ack thereofis clearly unreasonable in 1ight ofthe known circ'lD:mtances."'
Broward, 604 F.3d. at 1259 (quoting Davis, 526 U.S. at 648). ''Neither negligence nor mere
unreasonableness is enough." Davis, 526 U.S. at 642. "In essence, Title IX's premise 'is an official decision by
the recipient not to rerredy the vio1ation."' ld. (quoting Gebser, 524 U.S. at 290). The Court looks to relevant
Eleventh Circuit cases and persuasive authority fur guidance.
In Williams, fum student-athletes at the University ofGeorgia sexua.Jly assaulted a University student. Williams,
477 F .3d at 1288. The Eleventh Circuit court futind that the University's fu.ilure to infOrmthe student-ath1etes
about the sexual harassment policy and its fu.ilure to supetvise its student-athletes, despite knowledge ofthe
assailants' past sexual misconduct, caused the sexual assault and constituted deliberate indifference. Id. at 1296.
The court fuund that the eight-month de1ay between the incident and the disciplinary hearing and the university's
fu.iJure to take any precautions to prevent future attacks by the perpetrators or Jik:e:..minded hoo1igans, such as
removing the alleged assailants from student housing or implementing a more protective sexual harassment policy,
constituted deliberate indifference. ld.
. In Broward, a high school student brought a § 504 action alleging that the school board was deliberately
indi:trerent to sexual harassment by her math teacher, Mr. Hoever. Broward, 604 F.3d at 1250. The evidence
showed tha~ although it was the :first instance ofMr. Hoever sexua1ly assauhing the p~ two other students
had previously filed sexual harassment c1a.itm against Mr. Hoever. Id. Ahhough the school took ~orne action to
address the harassment allegations, the court fuund that the schoors response was tmreasonable in 1ight ofthe·
known circumstances because the school district had specific notice that the teacher had been accused oftwo
prior acts ofsexual harassment in his cJassroom, but fu.iJed to take any additional precautionary measures to
prevent future abuse. ld. at 1262. The court held that, '"where a school district has knowledge that its remedial
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action is inadequate and ineffuctive, it is required to take reasonable action in light ofthose circumstances to
eliminate the behavior."' Id. at 1261 (quoting Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253,259
(6th Cir. 2000)).
Sauls involved a school district's response to an inappropriate re1ationship between a student and a teacher.
Sauls, 399 F.3d at 1284. The comt fuund that the detendants' actions were not clearly unreasonable because
the school investigated and responded to an three allegations, constantly monitored the teacher's conduct, and
warned the teacher against future conduct. ld. The comt held that, ahhough the school ''may have been
ine:O.ective in preventing Blythe's harassment ofDustin, they did not act with deliberate ind.ifl.erence." Sauls, 399
F.3d at 1279.
Williams, Broward, and Sauls provide only limited guidance. None ofthe three cases pertained to disability
harassment, only Williams involved peer-to-peer harassment, and an three cases involve one person accused of
harassment and the measures taken by the school to prevent that person from harassing students in the future, not
a single student harassed by multiple perpetrators. This case is therefure 1argely an issue of:first impression in the
Eleventh Circuit. The Comt consequently looks to persuasive authority fur further guidance. 56
InS.S., a disabled student ''was involved innumerous physical and verbal altercations with other students, leading
S.S. to comp1ain that he was being bullied and harassed." S.S., 552 F.3d at 449. The comt fuund that the
defendants' response did not constitute·deliberate ind.ifl.erence.
The record shows that Model responded to all ofthe alleged incidents involving S.S. ofwhich it was made
aware, and that its responses included conducting individual and group interviews with S.S.'s c1assmates in an
attempt to determine who was at fault, instructing S.S.'s c1assmates not to taunt him, arranging fur outside
speakers to talk to the students about name-calling, identifYing re1ated topics fur discussion at school assemblies
and in small groups, monitoring S.S., at times separating S.S. from other students who had been involved in the
altercations, holding a mediation session between S.S. and another student, disciplining both S.S. and the other
students who were found to be at fault,. calling the police, having the police ta1k to an offunding student, and
calling the other students' and S.S.'s parents to discuss the discipJinaryproblenE.
532 F.3d at 445. The comt compared the schoors response to the school inK.M, where the comt fuund
deliberate indiffurence, and to the school in Biggs, where the comt did not. InK.M, the student and parents
reported each incident ofharassment, but no one was disciplined and the school took no action to prevent future
harassment. Id. at 455 (citing K.M, 381 F. Supp. 2d at 359). In Biggs, on the other hand, ''the school took
action each time, including counseling the child, meeting with offunding students, threatening the offunders with
suspension and alerting teachers to the problenE." ld. (citing Biggs, 229 F. Supp. 2d at 437). The comt
concluded that the schoors actions in S.S. were more simi1ar to the schoors actions in Biggs, '~specifically,
meeting with the students, conmmic~ting with parents, and disciplining the offunding students." Id.
In Big Walnut, students repeatedly teased, punched, pushed, and kicked the pJaintift; a student with significant
educational and social disabilities. Big Walnut, 2011 WL 3204686 (identifYing twenty reported incidents of
harassment). The comt fuund that there was no evidence that the detendants ''turned a blind eye to any incident
[the p1aintift] brought to their attention" ld. Instead, the evidence showed that the school took proactive and
affirmative steps to address the inappropriate conduct and protect the p1aintifl; ''including meeting regu]arly with
his parents, disciplining the offunding students, involving police when necessary, and instituting a mu1ti-mceted
sa:rety pJan and then meeting to review that pJan to ensure it was working." Id.
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This safety p1an included apprising John Doe's teachers ofthe physical and emotional concerns resuhing from the
April 17th fight; adjusting the schedules ofthe students involved in the fight to ensure the 1east ammmt of
interaction time between these students and John Doe; requiring John Doe to see Mr. Myers, a guidance
counselor selected personally by John Doe, each morning and report any incidents or other concerns John Doe
may have; and requiring John Doe to notifY House, Linda Snouffer (Dean ofDiscipline), or Mr. Jay Walker
(Asst. Principa~ irmnediately upon any alleged harassment from other students. John Doe's parents approved of
this plan. After this safety p1an was initiated, Big Wahlut officials reviewed the safety p1an in 1ate70ctober/early
November 2007. Ahhough some ofthe strategies employed in the initial safety plan were working, additional
measures were imp1emented because John Doe was still having difficulty with some students. These additional
measures included excusing John Doe from c1ass early to Jessen the interaction he had with students in the
hallway, finding more discreet ways ofhaving John Doe communicate with Mr. Myers; assigning a teacher's aide
to monitor John Doe in the hallway, at lunch and on the p1ayground; and allowing John Doe to use the restroom;
in the office ifhe desired.
!d. The court therefore could not find that the defendants' response to the bu11ying constituted deliberate indifference. Id. In Patterson v. Hudson Area Schools, 551 F.3d 438 (6thCir. 2009), the court fuund that Hudson Area
Schools (''Hudson'') was deliberately indifferent to student-on-student .sexual harassment ofa middle school
student. The p1a:inti:HB alleged that, beginning in sixth grade and continuing until ninth grade, DP was repeatedly ·
teased and bullied, finally esca1ating to criminal sexual assau1t. Patterson, 551 F .3d at 440-443 (describing
fourteen reported incidents ofharassment). The evidence showed that Hudson responded to each known
incident and disciplined or reprimanded the offending students, but the court found that Hudson "was aware that
the verbal reprimands to a few students were not stopping the overall harassment ofDP." Id. at 448. The court
concluded that a school district can be held liab1e "ifthat school district knows that its methods ofresponse to
harassment, ahhough efiective against an individual harasser, are ine:llective against persistent harassment against
a single student." !d. The court specifically distinguished the facts in Hudson from S.S. The court fuund that
Hudsondid less than the school district in S.S. because it did not arrange for outside speakers, identify
relevant topics for discussion in small groups, call the police, or call other students' parents to address
the problem. Patterson, 551 F. 3d at 448 n.7. In addition, the court pointed out that Hudson briefly
employed a system to effectively stop the harassment-- the use ofa resource room during DP's eighth
grade year-- but discontinued that practice during his ninth grade year. Id. at 449. Given that Hudson
discontinued effective methods and continued ineffective methods, the court found that Hudson's
response to th.e alleged harassment was clearly unreasonable and.constituted deliberate indifference.
Notably Patterson only serves as persuasive authority, involved sexual harassment not disability
harassment, and included a strong dissent. The dissent argued that the school's response was not clearly
unreasonable because the school responded appropriately to every reported incident, took additional
steps to protect the student, and instituted programs addressing harassment and bullying to aid the
plaintiff. Patterson, 551 F.3d at 452-55 (Vinson, R dissenting). The dissent argued that the majority
understated and misapplied the standard for deliberate indifference. !d. at 461.
b. Plaintiffs' Arguments
Plaintiffs argue that Defendants' response to the disability harassment of Tyler constitutes deliberate
indifference. First, despite actual knowledge ofcontinuous harassment, Plaintiffs argue Defendants
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failed to put into place policies that effectively addressed disability harassment, failed to effectively
instruct teachers and students that bullying was improper, andfailed to stress the duty to report bullying
and harassment. According to Plaintiffs, Defendants never had a speaker come in and speak to students
about harassment, did not have a policy for anonymously reporting bullying, and did not send out any
emails or put anything in the school newspaper or have any posters or notices in the halls addressing the
bullying and advising students how they could report bullying in a confidential manner. Moreover,
Plaintiffs argue that Defendants never provided teachers with any training, instruction, seminars or
presentations focused on bullying and how it would not be tolerated. According to Plaintiffs, Defendant
Linder did not have in place any program to educate or train teachers that every act ofbullying or
harassment must be reported to the administration, and Defendants never explained to teachers. what the
bullying policy was, how to interpret it, and how it needed to be applied. Plaintiffs point out that Mr.
Thornbury, the designated§ 504 coordinator, did not even know what the term "disability
discrimination" meant. Plaintiffs argue that teachers and counselors failed to understand what bullying
was or to know when to report bullying incidents. Ms. Coloroso testified that the failure to have a clearly
defined and articulated bullying policy contributed to the failure to follow mandatory discipline
procedures andfollow through on bullying incidents.
Second, Plaintiffs contend that multiple complaints were ignored or failed to result in investigation,
reporting, and remedial action. Specifically, Plaintiffs's argue that, after receiving Ms. Long's November
2007 emai~ Defendant Linder "simply did nothing," andfailed to send notices to Tyler's teachers or
direct teachers to send out emails explaining that Tyler had problems with social issues that made him
prone to ridicule. In fact, Plaintiffs contend that Defendants gave no notice to Tyler's teachers about his
Asperger's, his history ofharassment, or MCSD's bullying practice andpolicy. Additionally, Plaintiffs
argue that Mr. Swilling failed to effectively respond to Tyler's allegation that someone had spit in his
food in the lunchroom. Plaintiffs contend that Defendants' consistent failure to respond to bullying
incidents demonstrates deliberate indifference.
Third, Plaintiffs argue that Defendants' limited remedial measures clearly failed. According to Plaintiffs,
the IEP team addressed the bullying not by investigation, remedial' measures or a policy to stop it, but by
altering Tyler's instructional day so he would lose academic time to walk empty halls or making him
stand by teachers. According to Plal,ntiffs, although Defendants claimed that they placed cameras in the
halls and teachers in the cafeteria and halls, the teachers and staffrarely observed or stopped the
numerous bullying incidents.
Plaintiffs contend that Defendants'failure to have a clearly articulated bullying policy, to effectively
respond to specific incidents ofbullying, and to implement productive remedial measures is sufficient to
create an issue offact as to whether Defendants were deliberately indifferent to the harassment ofTyler.
After Tyler's suicide, students wrote the words "we will not miss you" and "it was your own fault" on the
walls ofMCHS. In addition, a hangman's noose was drawn on one ofthe walls ofthe school, and
students wore nooses around their necks to school. Plaintiffs argue that these actions best illustrate the
climate Defendants created at MCHS and demonstrate Defendants' deliberate indifference.
c. Analysis
For the following reasons, even viewing the evidence in a light most favorable to Plaintiffs, the Court
cannot find that Defendants' response to students' disability harassment of Tyler constitutes deliberate
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indifference. Although Plaintiffs establish that Defendants should have done more to address disability
harassment, Plaintiffs fail to meet the high bar ofdeliberate indifference and demonstrate that
Defendants' response was clearly unreasonable.
First, even viewing the evidence in a light most favorable to Plaintiffs, the Court cannot find that
Defendants' responses to the reported incidents ofdisability harassment constitute deliberate
indifference. In Davis, the Supreme Court described an "appropriate response" to harassment as follows:
[Ilt should take immediate and appropriate steps to investigate or otherwise determine what occurred
and take steps reasonably calculated to end any harassment, eliminate a hostile environment if one has
been created, and prevent harassment from occurring again.
Davis, 526 U.S. at 647-48 (quoting OCR Title IC Guidelines, 62 Fed. Reg. at 12042). In K.M, the student
and his parents reported incidents, but the school district failed to discipline the offending students or
take measures to prevent future harm. K.M, 381 F. Supp. 2d at 349. In S.S., on the other hand, the
school "conducted] group interviews ... to determine who was at fault, ... instruct[ed] S.S. s classmates
not to taunt him, ... monitor[ed] S.S., at times separat[ed] S.S.from other students, h[eld] a mediation
session between S.S. and other students, [and] disciplin[ed] both S.S. and students who were found at
fault." S.S., 532 F. 3d at 455. For the following reasons, the Court finds that Defendants' response meets
the test set forth in Davis and is more similar to the defendants' response in S.S. than in K.M
The evidence shows that Defendants disciplined the harassers and took measures to prevent future harm.
Plaintiffs fail to provide even one example ofa reported incident where Defendants fail to respond or
where Defendants' response was clearly unreasonable. In their response brief, Plaintiffs argue that
"nothing was done about": (1) Ms. Longs complaints about Mr. Archie; (2) Ms. Long's allegation that a
student spit in Tyler's lunch; and (3) Ms. Longs report that Tyler had been kicked while waiting for the
bus. (Pis.' Br. Resp. Defs. 'Mot. Summ. J. at 11.) The evidence, however, shows that Defendants
responded to each incident. In response to Ms. Longs first complaint about Mr. Archie, Mr. Swilling
talked to Mr. Archie and arranged an IEP meeting to inform Tylers teachers ofhis disability, address
potential social misunderstandings, and increase adult monitoring during Mr. Archies class. (Bowers Aff.
~ 13, Ex. G.). After Ms. Long lodged a second complaint about Mr. Archie, Defendant Linder met
directly with Mr. Archie to address Ms. Long's allegations andfollowed up with a letter ofreprimand-
Mr. Archie eventually resigned. (Linder Aff. ~ 4.) Although Mr. Swilling ultimately could not confirm the
spitting incident, he investigated the incident andput teachers in the cafeteria on notice about Tyler and
his situation. (Swilling Dep. at 34; Bowers Dep. at 57.); Broward, 604 F. 3d at 1262 ("These school
districts seemed to recognize that inconclusive investigations are common, especially when alleged
harassment occurs behind closeddoors. Therefore, a reasonable response under the known
circumstances may include taking informal corrective action in an abundance ofcaution to ensure that
future misconduct does not occur. ''). finally, in response to allegations that students bullied Tyler on the
bus, Ms. Bowers arranged for Tyler to walk to the bus with a teacher, stand next to a special education
teacher while waiting for the bus, and sit behind the bus driver. (Bowers Dep. at 64-65.) Although
Defendants could have issued more severe discipline or taken more preventative measures, given that
Defendants investigated each incident and took remedial measures to prevent future, similar incidents,
the Court cannot find that Defendants' responses to the individual incidents identified by Plaintiff were
clearly unreasonable.
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More generally, the evidence shows that Defendants diligently investigated each reported incident and,
when they could identify the harasser, disciplined offenders based on the severity ofthe incident and the
accused's disciplinary history. In sorne cases, the school counselor and the assistant principal held a
meeting with Tyler and the alleged perpetrators to help the students understand Tyler and his disability.
(Harkleroad Aff. ~ 3 (tripping incident); Bowers Dep. at 31 (hallway incident); Longmire Aff. ~ 4
(incident in chemistry class).) In other cases, school officials met with the perpetrators, discussed their
problems, and issued warnings. (Swilling Aff. ~~ 6-7 ("sexual harassment" complaint); Gallman Dep. at
25 (name-calling); Thornbury Aff. ~· 8 (incident in Spanish class); Gallman Aff. ~ 4 (I'.M and B.M).) In
the most severe cases, students received ISS. (Thornbury Aff. ~~ 5, 9, Ex. D.) Plaintiffs argue and present
expert testimony indicating that Defendants' disciplinary measures should have been more severe and
consistent. Specifically, they contend that Defendants should have contacted the police in response to the
September 2008 incident with J.M and B.M The undisputed evidence, however, shows that Defendants'
disciplinary responses successfully deterred students from harassing Tyler again. Significantly, no student
who received discipline from the school ever caused problems for Tyler again after being disciplined.
Defendants' response to the reported incidents was therefore 100 percent effective. Patterson, 551 F.3d
at 452 (Vinson, R. dissenting). Under those circumstances, even viewing the evidence in a light most
favorable to Plaintiffs, the Court cannot find that Defendants' disciplinary responses to the reported
harassment incidents were clearly unreasonably or subjected Tyler to further discrimination.
Outside ofinvestigating reported incidents and disciplining or working with offenders, the evidence also
shows that Defendants took reasonable steps to prevent future abuse. In Williams and Broward, the
courts found that the defendants failed to take "any precautions to prevent future attacks. " Williams,
477 F.3d at 1296 ("UGAfailed to take any precautions that would prevent future attacks from [the
assailants], or like-minded hooligans .... "); Broward, 604 F.3d at 1262 ("The incoming principal was
never informed ofHoever's history, no informal warning was issued for Hoever to avoid female students,
and no recommendation was made to monitor Hoever's classroom. '').In Big Walnut and S.S., on the
other hand, the schools developed and revised plans to provide for the plaintiffs' safety. See Big Walnut,
2011 WL 3204686 ("[S]chool officials took the initiative to put in place a safety plan to protect John
Doe and continuously revisedthe safety plan to make sure that John Doe was as safe as possible.''); S.S.,
532 F. 3d at 455 (discussing defendants' efforts to monitor S.S. and separate him from students involved
in the altercations).
Here, like in S.S. and Big Walnut, through Tyler's IEP, Defendants worked with Tyler's parents to develop
a safety plan to address Tyler's specific needs. After Defendants received notice ofTyler's problems at the
beginning ofninth grade, the IEP team met with Plaintiffs and determined that Tyler would be permitted
to come directly to Ms. Bowers' classroom when he arrived in the morning and eat breakfast with Ms.
Bowers, to sit near a teacher in the lunchroom, and to leave five minutes early to change classes. (Bowers
Aff. ~ 16, Ex. J.); see Big Walnut, 2011 WL 3204686 (finding no deliberate indifference where student
"was permitted to leave class early ... a teacher was assigned to monitor [student] outside ofthe
classroom, and [student] was permitted to used restrooms in the office}.''). The IEP team met with
Plaintiffs and many ofTyler's teachers every semester to ·address any parental or student concerns and
adjust the IEP plan ifnecessrrzry. In addition, unlike the defendants in Williams and Bartow, Defendants
used monitoring techniques to prevent future harassment. See Sauls, 399 F. 3d at 1287 ("School officials
also consistently monitored Blythe's conduct and warned her about her interaction with students.'') The··
evidence shows that Defendants required teachers to monitor the hallways and the cafeteria, and that
MCHS had forty-two video cameras throughout the building, which Defendant Linder could monitor
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from her desk. (Linder Aff. ~ 12.) Moreover, administrators instructed teachers to keep an eye on Tyler in
common areas such as the gym, hallways, and the cafeteria. (Bowers Dep. at 57.)
Plaintiffs argue that Defendants'prevention and monitoring techniques were inadequate. Specifically,
Plaintiffs' experts criticize Defendants for withholding Tyler's IEP from the staff and argue that the IEP
resulted in further social isolation. According to Plaintiffs, although Defendants allegedly placed cameras
and teachers in the hallways, Plaintiff was still bullied in the hallways and cafeteria, Defendants did not
capture the incidents on camera, and the teachers consistently failed to intervene. At best, however, these
criticisms show that Defendants' monitoring and prevention techniques could have been improved or
were below the relevant standard ofcare. See Broward, 604 F. 3d at 1262 (finding that courts "have
repeatedly recognized that a school district's reasonable response to sexual harassment may include
corrective action such as monitoring and admonishing an accused teacher or student. '') Even viewing the
evidence in a light mostfavorable to Plaintiffs, however, the Court cannot find that Defendants'
remedial measures suggest an official decision by Defendants not to remedy the violation or that
Defendants' response caused future harassment. To the contrary, the evidence shows that Defendants
took reasonable measures, even if those measures ultimately proved to be ineffective, to prevent future
harassment. Linder those circumstances, the Court cannot find that Defendants' precautions against·
future abuse were clearly unreasonable.
Second, the Court cannotfind that Defendants knew that their remedial action was ineffective, but
unreasonably failed to implement measures to eliminate harassment. In Patterson, the court relied
heavily on evidence that the school knew that use ofthe resource room impacted the amount of
harassment in eighth grade, but discontinued use ofthe resource room in ninth grade. Here, on the other
hand, there is ·no evidenc(! that Defendants ,;knew how to combat harassment ... and simply chose not to
implement that known method ofsuccess." Patterson, 551 F.3d at 448. Additionally, unlike in Patterson,
there is no evidence that the level ofharassment "escalated. " Id. In fact, the evidence shows that the
harassment was mosi severe in ninth grade.
Plaintiffs argue that, even if Defendants did not discontinue an effective method ofprotection, the
culture ofharassment at MCHS should have put Defendants on notice that their remedial measures were
ineffective. As evidence, Plaintiffs point to numerous incidents ofharassment reported after Tyler's death
and to the students who wore nooses and painted inappropriate messages in the bathrooms the day after
Tyler's suicide. Plaintiffs, however, point to no specific evidence indicating that Defendants knew about,
but deliberately ignored, a culture ofdisability harassment. "Obviously, the school district is not
responsible for failing to stop harassment ofwhich it was not made aware." Patterson, 551 F.3d at 452
(Vinson, R dissenting). Based on their communication with Ms. Long, Defendants could have reasonably
believed that their efforts to combat harassment were succeeding. In the beginning ofTyler's ninth-grade
year, Ms. Long sent Defendants a series ofemails describing widespread harassment ofTyler at MCHS.
(Swilling Aff. ~ 3, Ex. A; Harkleroad Aff. ~ 3, Ex. A; Linder Aff. Ex. A.) In response to those emails,
Defendants met with Plaintiffs and developed a flexible IEP plan to address Plaintiffs' concerns about
Tyler's safety. (Bowers Aff. ~ 16, Ex. J.) After the first semester ofTyler's ninth grade year, however, Ms.
Long never reported another specific incident ofharassment or complained about the general culture of
harassment at MCHS. In fact, Ms. Long sent numerous emails complimenting Defendants' work with
. Tyler and Tyler stopped using many ofhis accommodations. (Bowers Aff. ~ 25, Ex. S; Linder Aff. ~~ 7-8,
Exs. E-F.) Further, Defendants received no reports ofharassment from December 2008 until after
Tyler's death in October 2009; (Thornbury Aff. ~ 11.) Under those circumstances, even if Defendants
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could have done more to remedy the culture harassment, the Court cannot find that Defendants ignored
clear evidence that their remedial measures were ineffective.
Third, the Court cannot find that Defendants'failure to implement more bullying awareness programs
constitutes deliberate indifference. Plaintiffs' experts specifically point to the lack ofteacher training, the
lack ofschool-wide assemblies, the ineffective bullying policy, and the failure to provide specific
instruction on bullying, disability harassment, and Asperger's as evidence that Defendants failed to
· effectively respond to disability harassment against Tyler. Although the evidence clearly demonstrates
that Defendants could have implemented more programs to.address bullying generally and disability
harassment specifically, as discussed below, the evidence shows that Defendants took affirmative steps to
address bullying and disability harassment. Under those circumstances, the Court cannot find that
Defendants were deliberately indifferent.
First, the Code of Conduct contained an anti-bullying policy that prohibited all verbal and physical .
harassment and described the range ofconsequences and the procedures for administering the
disciplinary process. (Linder Dep. Ex. 2.) Administrators at MCHS expected teachers to read and
understand the bullying policy and discussed discipline procedures with the faculty at the beginning ofthe
school y~ar and at various times throughout the school year as needed. (I'hornbury Aff. ~~ 13-14.)
Second, although Defendants did not hold $Chool-wide assemblies addressing bullying, through the
"Teachers as Advisors" program, teachers met with small groups ofstudents, provided students with
character education and instruction related to interpersonal relationships, and reviewed the Code of
Conduct with theiradvisees. (Linder Aff. ~~ 13-14.) MCHS also participated in·the "Mix It Up"
program, which addressed tolerance between students. (Harkleroad Aff., 6, Ex. D.) In addition,·in the
fall of2009, MCSD implemented the Positive Behavioral Intervention and Support program to help
improve overall student behavior. (Linder A!f. 15, Exs. M- T.) 57 Third, although MCHS did not have a
confidential drop box, the evidence shows that MCHS had an online complaint form through which
students and teachers could confidentially report concerns or complaints. (Linder Dep. at 131-32.)
Although Plaintiffs' criticisms ofthese programs "may speak to the overall effectiveness ofthe policies
andprograms, and may be relevant ifnegligence were the standard, " merely showing that Defendants
shouldhave done more does not demonstrate deliberate indifference. Patterson, 551 F.3d at 455
(Vinson, R dissenting). Under those circumstances, the Court cannot find that Defendants' anti-bullying
programs were clearly unreasonable and constitute deliberate indifference.
This is an emotionally charged case with very difficult facts. There is little question that Tyler was the
victim ofsevere disability harassment, and that Defendants should have done more to stop the
harassment and prevent future incidents. To establish a claim under§ 504 and the ADA, however,
Plaintiffs must demonstrate that Defendants' response to disability harassment constitutes deliberate
indifference. Deliberate indifference is a difficult, exacting standard, and there is simply "no evidence of
an existence ofa clear pattern ofinaction or abuse by any school employees." Big Walnut, 2011 WL
3204686. Defendants addressed every reported incident ofharassment, collaborated with Plaintiffs to
develop accommodations for Tyler to prevent future bullying, worked to monitor hallways and
cafeterias, and implemented anti-bullying programs and policies. At best, Plaintiffs' evidence
demonstrates "that Defendants' harassment prevention techniques were not always effective, and that
Defendants should have done more to protect Tyler and address disability harassment. "[A] school
district," however "is not deliberately indifferent simply because the measures it takes are ultimately
ineffective in stopping" harassment. Sauls, 399 F.3d at 1285. Even viewing the evidence in a light most
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favorable to Plaintiffs, the Court cannot find that Defendants' response was clearly unreasonable, caused
additional harassment, or demonstrates an official decision by Defendants not to remedy disability
harassment. Under those circumstances, the Court finds that Defendants' actions do not rise to the level
ofdeliberate indifference. The Court therefore grants Defendants' Motion for Summary Judgment as to
Plaintiffs' ADA and§ 504 claim.
C. Public Nuisance
The Court finds that state sovereign immunity bars Plaintiffs' state public nuisance claim against
Defendant Murray County School District. See Canfield v. Cook County, 213 Ga. App. 625, 625, 445
S.E.2d 375, 376 (1994) ("A county cannot be liable for a nuisance except in the context ofa taking of
private property for public purposes amounting to inverse condemnation. "). The Court therefore grants
Defendants'Motion for Summary Judgment as to Plaintiffs' state law public nuisance claim.
D. Punitive Damages & Attorney's Fees
As discussed above, Plaintiffs' substantive claims fail as a matter oflaw. Plaintiffs consequently are not
entitled to attorney's fees or punitive damages. Walker County v. Tri-State Crematory, 285 Ga. App. 34,
40, 643 S.E.2d 324,329 (2007); see also Common Cause/Georgia v. Billups, 554 F.3d 1340, 1356 (11th
Cir. 2009) (observing that, to obtains attorney's fees under§ 1988, party must be ''prevailing party").
The Court consequently grants Defendants' Motion for Summary Judgment as to Plaintiffs' claims for
attorney's fees andpunitive damages.
IV. Conclusion
ACCORDINGLY, the Court GRANTS Defendants' Motion for Summary Judgment as to all claims. The
Court DIRECTS the Clerk to CLOSE THIS CASE.
1 Both parties' Statements
ofMaterial Facts include irrelevant and repetitive statements, as well as legal
conclusions. In addition, many of the parties' statements contain multiple factual allegations and many of
the parties' responses do not comply with the Local Rules. The Court has nevertheless tried to provide a
full factual background and to explain its reasoning where possible.
2 DSMF ~ 2 is unsupported by a citation to the evidence and irrelevant to the disposition ofthe
underlying Motion. The Court therefore excludes DSMF ~ 2..
3Asperger's is a form ofautism. The Complaint describes Asperger's as "a social anxiety disorder that
prevents the afflicted individual from, among other things, normal social interaction with other people,
understanding other people's emotions, and differentiating between joking and serious interaction with
others. " (Am. Compl. ~ 11.)
4 The Court excludes DSMF ~ 4 as irrelevant. ~ 11.)
5 To protect
their identities, the Court refers to all minors in the case only by their initials.
6 The Court agrees with Plaintiffs that the text message and suicide note speak for themselves and
excludes DSMF ~~ 10,12.
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7The Court finds that DSMF ~~ 15-16 are relevant to causation andprovide background and context.
8 The Court finds that a portion ofthe evidence relating to Tyler's visit with Dr. Karasievich is relevant to
causation andprovides background and context. The Court includes only the relevant portions.
9 The Court finds that evidence ofTyler's circumstances in the time period immediately prior to his
suicide is relevant to causation. The Court therefore includes DSMF ~~ 30-32.
10 The Court excludes DSMF ~~ 37-46 and 47-48 as irrelevant.
11 The evidence does not establish whether Mr. Weaver observed A.H taunting Tyler. (JR. Dep. at 14
(testifying that, although it is a ''possibility, " given dimensions ofclassroom, he "wouldn't say
absolutely" that Mr. Weaver would have seen incident).)
12 The Court finds that DSMF ~~ 61-65 are not relevant to the underlying Motion. Plaintiffs' statement of
materialfacts did not include any evidence indicating that Tyler was pushed into a locker or bullied on
the bus on October 16, 2009.
13 The Court finds that unreported incidents ofharassment ofTyler are relevant to establish the severity
ofdisability harassment against Tyler. The Court consequently includes evidence ofunreported incidents
ofharassment against Tyler.
14 The Court finds that incidents that occurred directly after Tyler's death are relevant to establish
students' treatment of Tyler and the alleged culture ofbullying at MCHS. The Court therefore overrules
Defendants' objections.
15 The Court finds that Plaintiffs' representations to the media and .at Tyler's funeral are irrelevant to the
underlying Motion. The Court therefore excludes DSMF ~~ 70-75 as irrelevant.
16The Court finds that evidence ofgeneral programs addressing student behavior is relevant to the
underlying Motion.
17The Court finds that evidence about the "Teachers as Advisors" program is relevant to the underlying
Motion.
18Jill Hyde testified that MCSD did not implement P BIS to all MCHS students until the fall of2009. (Dep.
ofJill Hyde at 12.) The evidence fails to clearly establish whether Tyler's class participated in the
program prior to Tyler's suicide.
DSMF ~~ 105-08 are irrelevant because they do not concern discipline for abuse ofTyler. The Court
therefore excludes DSMF ~~ 105-08.
19 The evidence cited does not support PSMF ~~ 179-180. The Court therefore excludes PSMF ~~ 179
180.
20Although there is no federal definition of "bullying," bullying is a commonly used term and Ms.
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Gallman s testimony about "training or instruction on what bullying is or the bullying code" is
consequently relevant to the underlying Motion. The Court therefore includes PSMF ~~ 89-90. The
Court, however, finds that Ms. Gallman s specific knowledge ofTyler's Individual Education Program
and understanding ofAsperger's is irrelevant to the underlying Motion and excludes PSMF ~,-r 91-93.
21 The Court finds that DSMF ~~ 119-123, which concern the Safe and Drng Free Schools survey, are
irrelevant to the underlying Motion. The issue in this case is whether Defendants were deliberately
indifJerent to disability harassment against Tyler. Other students'feelings about the bullying culture at
MCHS are consequently irrelevant to the underlying Motion. The Court therefore excludes DSMF ~~
119-123.
22 The Court finds that PSMF ~~ 196, 198-99 contain impermissible legal conclusions. The Court therefore excludes PSMF ~~ 196, 198-99. 23Ms. Oxford is the Director ofInstitutional Support Services and Exception Student Services and is the
custodian ofthe records generation in connection with the identification and evaluation ofstudents with
disabilities for special education under the IDEA. (Oxford Aff. ~ 3.)
24DSMF ~ 141 states that all of Tylers teachers for both first and second semester attended, but the
evidence only indicates that Ms. Bowers sent notices to all of Tylers teachers. Plaintiffs argue that not all
of Tylers teachers attended the September 24, 2007 meeting, but provide no evidence in support oftheir
corztention. (See PRDSMF ~ 141.)
25 The Court excludes DSMF ~~ 145 and 148 as irrelevant.
26 The
Court includes evidence about Tyler's academicpeiformancefor purposes ofbackground and
context.
27Evidence ofmeetings between Plaintiffs and MCHS officials provides context and background and is
relevant to MCHS' level ofknowledge.
28 The
Court excludes DSMF ~~ 170-72 as irrelevant.
29 The
Court excludes DSMF ~~ 177-78 as irrelevant.
30 The Court excludes DSMF ~~ 182-83 and 185-86 as irrelevant.
31 The Court finds that Ms. Long's email is relevant to the issue ofnotice.
32 The1 Court finds that the evidence does not support Defendants' claim that Ms. Thomason provided
.Tyler's teachers with information about Asperger's. (See Meade Aff.
~ 3.)
33DSMF ~ 189 is only relevant to provide background and context.
34Evidence ofthe results ofMCHS' investigation
is relevant to evaluating MCHS' response to the
incident. Any hearsay can be converted to admissible form at trial. The Court therefore includes DSMF ~
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197.
35Although it is undisputed that the altercation occurred, evidence ofMCHS' steps to investigate the
. incident is relevant to the underlying Motion. The Court therefore includes DSMF ~ 198.
36 The
Court excludes PSMF ~~ 174-75 as irrelevant.
37The Court excludes DSMF ~ 212 as irrelevant.
Court includes DSMF ~208for background and context, the Court excludes DSMF ~ 209 as
irrelevant.
38 The
39 The Court .finds that the details ofbullying incidents are relevant to the underlying Motion. The Court
therefore includes DSMF ~ 211.
4 0r.p and M V. 8 discipline records andfuture conduct are relevant to determining the appropriateness
ofMCHS' response. The Court therefore includes DSMF ~ 213-14.
41At his deposition, Mr. Thornbury could only recall one incident where M~HS took disciplinary action
against students forbullying Tyler. After reviewing disciplinary records, however, Mr. Thornbury
testified that MB. was assigned to ISSfor three days as a result ofthis incident with Tyler. (See
Thornbury Dep. at 43-44; Thornbury Aff. ~ 9.) The relevant question is whether MCHS took disciplinary ·
action, not whether Mr. Thornbury could recall the disciplinary action at the time ofhis deposition. The
Court consequently finds that the evidence supports DSMF ~ 222.
42Evidence concerning MCHSs response to bullying accusations is relevant to the underlying Motion.
The Court therefore includesDSMF ~~82-83.
43Evidence as to whether school officials and teachers had notice ofTylers Aspergers is relevant to the
underlying Motion. The Court therefore includesDSMF ~ 236.
44 The Court excludes DSMF ~~ 239-42 as irrelevant. Whether any specific individual observed students
mistreating Tyler is irrelevant to the underlying Motion.
45 The Court excludes DSMF ~~ 248-251 as irrelevant.
46After Tylers
death, a number ofstudents testified about students mistreating or bullying Tyler. In many
cases, the students could not indicate when the incident occurred or identify the specific perpetrators.
The Court nevertheless finds that these allegations are relevant to the underlying Motion.
47The
Court cannot find that every detail about Tylers elementary and middle school years is relevant to
the underlying Motion. The Court, however, finds that Tylers medical history in middle and elementary
school is relevant to the underlying Motion. The Court therefore excludes PSMF ~~ 251-54, 258-64, 267
286, 289-297.
48 ln the Courts Order ofApril18, 2012, the Court granted in part and denied in part Defendants'
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Motion to Exclude the Opinions ofPlaintiffs' Expert Barbara Coloroso. (Order ofApr. 18, 2012.) The Court granted the Motion as to Ms. Coloroso s general and specific causation opinions, but denied the Motion as to Ms. Coloroso s opinions concerning Defendants' anti-bullying policies. (ld.) The Court
excludes any opinion that states an· impermissible legal conclusion. The Court consequently excludes
PS.MF~~ 240, 246, and 251-52.
49 ln
the Courts Order ofAprill8, 2012, the Court denied Defendants' Motion to Exclude the Opinions of
Plaintiffs' Expert Jason Andrews. The Court excludes the portions ofPSMF ~ 253 which contain legal
conclusions. The Court also excludes PSMF ~ 254 and portions ofPSMF ~ 256 as impermissible legal
conclusions.
to Docket Entry No. 161-1, which does not support PSMF ~~ 257-262. The Court
therefore excludes PSMF ~~ 257-262.
50Plaintiffs cite
51Plaintiffs'relianceonRayv.
Foltz, 370F.3d 1079 (lith Cir. 2004) isunpersuasive. In Ray, the court
found a custodial relationship because the plaintiff was in a foster home. Ray, 370 F. 3d at 1083. Armigo
v. Wagon Mount Public Sch., 159 F.3d 1253 (lOth Cir. 1998) and Sutton v. Utah St. Sch.for Deaf, 173
F.3d 1226 (lOth Cir. 1999) are not Eleventh Circuit cases and have no bearing on the status ofthe state
created danger theory in the Eleventh Circuit. The Court consequently cannot find that Defendants have
a constitutional duty to Tyler based on the state-created danger theory.
52For the
Court to find Defendants liable for failure to train, the Court must find that Defendants'
employees failed to discharge some constitutional duty. Wyke, 129 F. 3d at 569. Here, because the Court
finds that Defendants had no constitutional duty to Tyler and did not violate Tyler's constitutional rights,
the Court need not address Plaintiffs' municipal and supervisory liability Claims against Defendants
MCSD and Linder. See Id. ("Before addressing whether the School Board can be held liable for a failure
to train its employees, we must first determine whether those employees violated any of Wykes
constitutional rights byfailing to discharge some constitutional duty owed directly to Shawn (and thus
indirectly owed to Wyke), or some constitutional duty owed directly to Wyke. ") The Court therefore does
not separately analyze Plaintiffs' claims against Defendant Linder and Defendant MCSD -- those claims
fail as a matter oflaw.
53Like
the other federal courts which have addressed the applicability ofDavis for ADA/§ 504 claims,
the Court finds that the similarity between the language in Title IX and the language in Title II ofthe
ADA and§ 504 ofthe Rehabilitation Act suggest that the Davis framework should apply to disability
harassment claims. Compare 20 U.S.,C. § 1681(a) ("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'') with 42 U.S. C. § 12132 (''
[N]o qualified individual with a disability shall, by reason ofsuch disability,· be excluded from
participation in or be denied the benefits ofthe services, programs, or activities ofa public entity, orbe
subjected to discrimination by any such entity.'') and 29 U.S.C § 74(a) ("No otherwise qualified
individual with a disability in the United States, as defined in section 705(20) ofthis title, shal~ solely by
reason ofher 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 or under·
any program or activity conducted by any Executive agency or by the United States Postal Service.'')
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7/2/12
54In any event, Defendants' evidence shows that Tyler's grades declined throughout high school.
(GreesonAff.
~
6, Ex. B.)
55On a Motion for Summary Judgment, the Court cannot evaluate the credibility ofPlaintiffs' evidence.
At this stage, the Court finds that Plaintiffs' evidence is sufficient to at least create an issue offact as to
whether the years ofharassment caused Tyler's suicide.
56 The Court does not consider the Office of Civil Rights ("OCR'') administrative enforcement actions
cited by Plaintiffs. OCR applies a different and less exacting legal standard in enforcement actions than
courts apply in actions for monetary damages. (Pls. Reply Supp. Pls. 'Mot. Summ. J. Exs. 3-4.)
57Even
if Tyler did not-actually participate in PBIS, Defendants' implementation ofPBIS is evidence ofa
program designed to combat bullying and harassment.
Cases Cited
972 F.2d 1364
675 F.3d 849
129F.3d 560
394 F. App'x 673
489 U.S.189
555 F.3d 979
160 F. App'x 877
209F. Supp. 2d 1301
306 F. Supp. 2d 1219
485 F.3d 1130
520 F.3d 1269
527 F.3d 1253
Copyright 2012 ©LRP Publications
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7-9-12 Georgia Court Decision

Transcription

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