Bridges et al v. Scranton School District

Filing 54

MEMORANDUM (Order to follow as separate docket entry) re 31 MOTION for Summary Judgment filed by Scranton School District Signed by Honorable A. Richard Caputo on 11/6/14. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHARELLE BRIDGES and ANTHONY
BRIDGES, on behalf of their son, D.B., a
minor, and individually on their own
behalf,

CIVIL ACTION NO. 3:CV-12-2531
(JUDGE CAPUTO)

Plaintiffs,
v.
SCRANTON SCHOOL DISTRICT,
Defendant.
MEMORANDUM
Presently before the Court is Defendant the Scranton School District’s (the “District”)
Motion for Summary Judgment. (Doc. 31.) Plaintiffs, D.B., a minor student, and his parents,
Sharelle Bridges (“Mrs. Bridges”) and Anthony Bridges (“Mr. Bridges”) (collectively,
“Plaintiffs”), contend that D.B. was harassed and bullied by other students while he was in
first grade and by his teacher while he was in second grade. Plaintiffs assert claims against
the District for deprivation of their substantive due process rights under the Fourteenth
Amendment and violations of Title VI of the Civil Rights Act of 1964. Because the facts
when viewed in the light most favorable to Plaintiffs fail to establish a substantive due
process or Title VI claim, the District’s motion for summary judgment will be granted.
I. Background
D.B. attended first and second grade at two elementary schools within the Scranton
School District. D.B. attended Francis Willard Elementary School for first grade, while he
attended Robert Morris Elementary School for second grade. (Doc. 33, Defendant’s
Statement of Facts, “Def.’s SMF,” ¶ 1; Doc. 50, Plaintiffs’ Counterstatement of Facts, “Plfs.’
CSF,” ¶ 1.) D.B. attended Robert Morris for second grade following a move to a new home.
(Def.’s SMF, ¶ 27; Plfs.’ CSF, ¶ 27.) Following his second grade year, D.B.’s parents

enrolled him in Connections Academy, a cyber school in the Scranton School District.
(Def.’s SMF, ¶ 68; Plfs.’ CSF, ¶ 68.) D.B. intends to stay at Connections Academy until he
leaves for college. (Def.’s SMF, ¶ 22; Plfs.’ CSF, ¶ 22.) D.B. and his parents are AfricanAmerican. (Compl., ¶¶ 4-5; Def.’s Answer, ¶¶ 4-5.)
D.B. testified that he was bullied by other students on multiple occasions while he
was in first grade at Francis Willard Elementary School. (D.B. Dep., 30:18-32:13, 38:1139:21.) On one occasion, D.B.’s arm was twisted and he had to go to the hospital and get
a cast. (Id. at 31:18-32:2.) On another occasion, D.B. was jumped by two students and he
was kicked and stomped while he was on the ground. (Id. at 32:32:3-13.) D.B. also had to
go to the hospital following that incident. (Id.) A third incident in first grade involved D.B.
being stabbed in the chest with a safety pin. (Id. at 38:17-21.) Thereafter, the same student
retaliated against D.B. by slamming him into a brick wall at school. (Id. at 39:6-9.)
These incidents were all reported to the school principal, Ms. Leitzel. (Id. at 39:2340:7.) Following these incidents, D.B.’s classroom was changed. (Id.) Mrs. Bridges testified
that D.B.’s classroom was changed three or four times that year, and Ms. Leitzel did that
to make D.B. comfortable. (Mrs. Bridges Dep., 40:9-22.) After D.B. was moved classrooms,
he might still be shouted at or hit, but he was no longer jumped. (Id. at 41:6-12.) According
to Mr. Bridges, there were two meetings with Ms. Leitzel about D.B. being bullying while he
was in first grade. (Mr. Bridges Dep., 18:8-20:13, 105:8-106:17.) Following the first
meeting, Ms. Leitzel indicated that the instances of bullying would be investigated. (Id. at
19:16-20:5.) Ms. Leitzel testified that she recalled investigating incidents involving D.B. on
the playground, but she never reduced her investigations to writing. (Ms. Leitzel Dep., 21:825.) Ms. Leitzel also testified that D.B. was friends with the boys involved in those incidents.
(Id. at 19:3-20:14.) Ms. Leitzel indicated that her investigations revealed that D.B. was also
“hands-on with the boys,” and she disagreed with characterizing D.B. as having been

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“attacked” or “jumped.” (Id.)
D.B. testified that he was also bullied by other students on one occasion in second
grade. (D.B. Dep., 27:9-29:14.) In that case, D.B. was out on the playground, when two
students approached him and then two more students came from the other direction and
jumped him. (Id.) D.B. fought them off by kicking one student and punching another
student. (Id.) The other two students ran off. (Id.) Following that incident, D.B.’s teacher,
Mrs. Wilcha, gave him detention, but no detention was given to the other students that
started the fight. (Id.) Mrs. Wilcha asked the other students what happened and their side
of the story, but D.B. never got the opportunity to explain his side of the story. (Id.) D.B. got
detention as a result of that incident. (Id.) Also while D.B. was in second grade, another
student tried to jab him in the eye with a pencil during class. (D.B. Dep., 41:20-42:2.) Mrs.
Wilcha, D.B. testified, did nothing in response to that incident. (Id.)
In addition, D.B. testified that he was bullied on a number of occasions while he was
in second grade by Mrs. Wilcha. Mrs. Wilcha, however, disputes the contention that she
bullied or harassed D.B. In his second grade class, D.B. was the only African-American
student, and there was one biracial student. (Mrs. Bridges Dep., 132:5-11.)
According to D.B., Mrs. Wilcha threw or flung his desk on the floor on two occasions.
(D.B. Dep., 18:12-19:2.) And, on a third occasion, Mrs. Wilcha turned the desk over, shook
everything out of it, and yelled at D.B. to pick his things up. (Id.) Mrs. Wilcha, however,
testified that she never turned over his desk. (Mrs. Wilcha Dep., 60:14-18; 152:13-16.)
D.B. also testified that Mrs. Wilcha was very mean to him while he was in second
grade. (D.B. Dep., 18:10.) D.B. indicated that Mrs. Wilcha would unfairly give him detention.
(Id. at 19:3-12.) She would also write his name on the board for no reason, such as when
his name was put on the board because he brought in a snack that Mrs. Wilcha did not like.
(Id. at 22:3-19.) Mrs. Wilcha testified, though, that his name was never written on the board

3

for having an unhealthy snack. (Mrs. Wilcha Dep., 47:5-14.) Mrs. Wilcha did recall that
D.B.’s name, as well as the names of other students, were placed on the chalkboard during
that year pursuant to her behavior plan. (Id. at 56:12-20.) And, Mrs. Wilcha remembered
giving other students detention that year, and she recalled giving another student numerous
detentions during that school year. (Id. at 154:6-11.)
D.B. further testified that he was verbally abused by Mrs. Wilcha, and she called him
a “dummy,” “stupid,” and “lazy.” (D.B. Dep., 34:15-36:11.) This happened on two occasions.
(Id.) On one instance, D.B. answered a question incorrectly, and Mrs. Wilcha asked if he
was stupid. (Id.) On the second occasion, Mrs. Wilcha was going around the class and she
just referred to D.B. as stupid. (Id.) Mrs. Wilcha, D.B. testified, never said that to any other
students. (Id.) Mrs. Wilcha denied that she ever called D.B. dumb or stupid. (Mrs. Wilcha
Dep., 56:7-11.)
D.B. also testified that Mrs. Wilcha made him sit by the window. (D.B. Dep., 44:3-15.)
In the winter, D.B. indicated that Mrs. Wilcha would leave the window open so he could
freeze, while when it was hot outside she would keep the window closed. (Id.)
D.B. also recalled a time during second grade when he sprained his ankle and had
crutches. (D.B. Dep., 24:23-26:3.) D.B. had the crutches for about two weeks. (Id.) One
time, Mrs. Wilcha ordered another student to get the crutches and put them in the back of
the room. (Id.) Later that day when D.B. needed the crutches, nobody got them for him.
Instead, he had to crawl on the floor to get his crutches. (Id.) Mrs. Wilcha recalled D.B.
having crutches. (Mrs. Wilcha Dep., 117:10-119:3.) According to Mrs. Wilcha, D.B.’s
crutches were resting against a counter and they kept falling. (Id.) Mrs. Wilcha instructed
another student to put them in a corner about three or four feet from D.B.’s desk, and stated
that they would get the crutches for D.B. (Id.) Mrs. Wilcha stated that this was done as a
safety precaution. (Id.)

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Mrs. Bridges testified that D.B. was harassed in second grade by Mrs. Wilcha with
respect to a food allergy. Specifically, D.B. had a strawberry allergy and Mrs. Bridges had
a concern about his exposure to strawberries during second grade. (Mrs. Bridges Dep.,
132:17-139:21.) Although D.B.’s strawberry allergy was noted in his school planner and
Mrs. Bridges testified that she had completed an information card identifying his allergy,
students were permitted to bring strawberries to class and eat them around her son. (Id. at
135:4-11, 137:1-2.) Mrs. Bridges raised this issue with Mrs. Wilcha and Ms. Damiano, the
school principal, but they indicated that they were unaware of D.B.’s allergy. (Id. at 136:20138:3.) Mrs. Bridges filled out an information card again indicating D.B.’s allergy, but there
continued to be issues with strawberries, as Mrs. Wilcha continued to allow students to have
strawberry products. (Id. at 138:11-139:15.) This, Mrs. Bridges testified, was in contrast to
how Mrs. Wilcha handled another student’s allergy to peanuts. (Id.) One time, Mrs. Bridges
sent D.B. to school with a peanut butter cup, and Mrs. Wilcha sent a letter home stating that
D.B. could not bring snacks with peanut butter because a classmate had a peanut allergy.
(Id.) Mrs. Wilcha testified that she was unaware that D.B. had a strawberry allergy until it
was brought up by Mrs. Bridges. (Mrs. Wilcha Dep., 106:4-9.) Mrs. Wilcha further testified
that even though D.B.’s strawberry allergy was identified in his school planner, it was on a
page towards the beginning of the planner that she had not viewed. (Id. at 110:5-7.) Ms.
Damiano also did not know if the allergy was marked in D.B.’s student planner because that
was not something she would look at. (Ms. Damiano Dep., 91:18-22.) Ms. Damiano further
testified that when the issue about the strawberry allergy first arose, there was no
documentation or yellow card with the nurse indicating that D.B. had such an allergy. (Id.
at 92:10-94:7.)
Mrs. Bridges attended three or four meetings with Mrs. Wilcha and Ms. Damiano
while D.B. was in second grade. (Mrs. Bridges Dep., 46:11-24.) Mrs. Bridges attended

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those meetings with her mother, and on one occasion, Mr. Bridges also was in attendance.
(Id.) The first meeting took place on October 3, 2011. (Id. at 50:7-18.) That meeting
pertained to D.B.’s behavior in class. (Id. at 52:5-9.) Mrs. Bridges requested a class change
for D.B., but Ms. Damiano would not change his class. (Id. at 56:12-57:22.) Mrs. Bridges
also testified that Mrs. Wilcha referred to D.B. as a “gabber” at that meeting and that she
had to move his desk a few times because she believed he could not see the board and
needed glasses. (Id. at 52:16-53:16.) D.B. attended that meeting, and when he tried to
explain himself, Mrs. Wilcha put her hand in his face, indicating that he be quiet. (D.B. Dep.,
23:5-20.)
The second meeting took place on October 12, 2011, and Mrs. Bridges attended it
with her mother and husband. (Mrs. Bridges Dep., 58:15-17, 59:11-13.) The purpose of that
meeting was to look at D.B.’s educational record, and they sat in the library and reviewed
D.B.’s records. (Id. at 59:14-22.) Mrs. Bridges also indicated that Mrs. Wilcha again referred
to D.B. as very talkative, a “gabber.” (Id. at 60:1-6.) According to Mrs. Bridges, she did not
tell Ms. Damiano at either that meeting or the October 3, 2011 meeting that Mrs. Wilcha
was bullying D.B. (Id. at 65:19-25.)
Mrs. Bridges believes that a third meeting took place on November 20, 2011. (Id. at
47:9.) Ms. Damiano, however, testified that she did not have a meeting with the Bridges
in November 2011 because she did not have any notes documenting such a meeting. (Ms.
Damiano Dep., 65:25, 82:16-19.) Mrs. Wilcha similarly testified that if there was a meeting
in November 2011, there would be a sign-in sheet documenting that meeting. (Mrs. Wilcha
Dep., 87:12-14.)
The final meeting between Mrs. Bridges, Mrs. Wilcha, and Ms. Damiano took place
on April 26, 2012 at Mrs. Bridges’ request. (Mrs. Bridges Dep., 66:23-67:1.) At that
meeting, they discussed D.B.’s academic progress, that he was talkative in class, and the

6

discipline reports that had been sent home. (Id. at 67:2-19.) Mrs. Bridges testified that she
did not tell Ms. Damiano that D.B. was being bullied by Mrs. Wilcha at that meeting. (Id. at
76:13-16.) However, Mrs. Bridges testified that she stated in front of Ms. Damiano that Mrs.
Wilcha threw D.B.’s desk on three occasions. (Id. at 76:20-77:16.) Mrs. Bridges further
testified that Mrs. Wilcha denied throwing the desk, and that Ms. Damiano indicated that
she did not believe that Mrs. Wilcha would do such a thing. (Id.) Ms. Damiano testified that
she did not recall this issue being discussed at the April 26, 2012 meeting. (Ms. Damiano
Dep., 105:10-16.) Mrs. Wilcha was similarly unable to recall if the turning over of D.B.’s
desk was discussed during the April 26, 2012 meeting, (Mrs. Wilcha Dep., 104:11-15), and
she denied ever turning over D.B.’s desk. (Id. at 60:11-25, 152:13-16.) Mrs. Bridges also
confirmed that other than the desk throwing, she never told Mrs. Wilcha or Ms. Damiano at
any meeting that she believed D.B. was being bullied. (Mrs. Bridges Dep., 147:5-14.)
Lastly, Mrs. Bridgers and her mother had a meeting with Louis Paris (“Mr. Paris”) on
June 8, 2012. (Mrs. Bridges Dep., 94:4-10.) Although Mrs. Bridges had intended to meet
with the District superintendent, she instead met with Mr. Paris, the head of the elementary
school. (Id. at 94:11-15.) At that meeting, Mrs. Bridges expressed her concerns with D.B.
being bullied by Mrs. Wilcha. (Id. at 95:20-101:12.) Mrs. Bridges explained the incidents
with the desk throwing, her concerns that D.B. was being unfairly punished, and that she
called him a “dummy” and “stupid.” (Id.) Mrs. Bridges also indicated that she did not want
D.B. to finish the final two weeks of school because he was scared, but Mr. Paris stated that
he had to attend school because it was a truancy issue. (Id.) Mr. Paris also informed Mrs.
Bridges at the meeting that he could provide a boundary exception because D.B. no longer
wanted to attend Robert Morris. (Id.) Mr. Paris further stated that he would take care of the
problem and get in contact with her after the meeting. (Id.) Following that meeting, Mr.
Paris called Mrs. Bridges, and he also sent a letter including a boundary exception form. (Id.

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at 100:10-101:12.) That was the last time Mrs. Bridges spoke to Mr. Paris, and she never
attempted to call back to the school to talk to Mr. Paris or William King (“Mr. King”), the
school superintendent. (Id. at 102:12-17.) Mrs. Bridges further testified that, outside of
mentioning the desk throwing incidents to Mrs. Wilcha and Ms. Damiano at the April 26,
2012 meeting, her conversation with Mr. Paris on June 8, 2012 was the first time she
expressed concerns to anyone about bullying. (Id. at 147:5-18.)
According to Mrs. Bridges, while D.B. was in Mrs. Wilcha’s class, he began to have
nightmares, he started wetting the bed, and he was frequently blinking. (Mrs. Bridges Dep.,
14:12-15:14.) A psychiatric evaluation of D.B. notes that he developed anxiety and
depressive symptoms in reaction to the issues he went through during his second grade
year. (Doc. 50, Ex. M.)
During the summer following D.B.’s second grade year, the Bridges decided that D.B.
would attend Connections Academy. (Mrs. Bridges Dep., 103:5-20.) They made that
decision because they felt it would be safer for D.B. (Id.)
In September 2012, Ms. Damiano and Mr. Struzzieri, the District’s truancy liaison for
Children and Youth Services, came to the Bridges’ house. (Mrs. Bridges Dep., 110:13-17.)
According to Mrs. Bridges, Mr. Struzzieri asked what school D.B. was attending because
he had missed twenty-three or twenty-four days of school. (Id. at 112:22-113:6.) Mrs.
Bridges replied that she had withdrawn D.B. the prior month and to contact the
administration office. (Id.) Ms. Damiano recalled visiting the Bridges’ house with Mr.
Struzzieri. (Ms. Damiano Dep., 109:9-20.) According to Ms. Damiano, D.B. had never been
withdrawn and that he continued to show up on their rolls. (Id. at 109:21-24.) Ms. Damiano,
however, was unaware at that time that the Bridges had completed a withdrawal form. (Id.
at 110:18-111:3.)
During D.B.’s first and second grade years, the District had a bullying policy. (Docs.

8

34; 35.) The policy was the same for the 2010-2011 and 2011-2012 school years. (Mr. King
Dep., 74:1-20.) Although the bullying policy focused mainly on student-on-student bullying,
(id. at 28:4-29:10), the policy also contained language addressing employees, (id.), and
Mrs. Wilcha and Ms. Damiano understood the policy to also apply to teacher-on-student
bullying. (Mrs. Wilcha Dep., 126:20-23; Ms. Damiano Dep., 33:5-34:24.)
In view of the foregoing events, Plaintiffs commenced this action against the District
on December 18, 2012. (Compl.) In Count I of the Complaint, D.B., Mrs. Bridges, and Mr.
Bridges assert a claim for the deprivation of their substantive due process rights. Count II
of the Complaint sets forth a claim for violation of Title VI of the Civil Rights Act of 1964
(“Title VI”), 42 U.S.C. § 2000d et seq.
Following the close of discovery, the District filed the instant motion for summary
judgment on September 2, 2014. (Doc. 31.) Plaintiffs filed their brief in opposition to the
motion for summary judgment on September 16, 2014, (Doc. 51), and the District filed its
reply brief in further support of its motion on September 30, 2014. (Doc. 53.) The District’s
motion for summary judgment is fully briefed and ripe for disposition.
II. Discussion
A.

Legal Standard
Summary judgment shall be granted “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “Summary judgment is appropriate when ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.’” Wright v. Corning, 679 F.3d 101, 103 (3d Cir. 2012)
(quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995)). A fact is material if
proof of its existence or nonexistence might affect the outcome of the suit under the

9

applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986).
Where there is no material fact in dispute, the moving party need only establish that
it is entitled to judgment as a matter of law. See Edelman v. Comm’r of Soc. Sec., 83 F.3d
68, 70 (3d Cir. 1996). Where, however, there is a disputed issue of material fact, summary
judgment is appropriate only if the factual dispute is not a genuine one. Anderson, 477 U.S.
at 248, 106 S. Ct. 2505. An issue of material fact is genuine if “a reasonable jury could
return a verdict for the nonmoving party.” Id. Where there is a material fact in dispute, the
moving party has the initial burden of proving that: (1) there is no genuine issue of material
fact; and (2) the moving party is entitled to judgment as a matter of law. See Howard Hess
Denal Labs., Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 251 (3d Cir. 2010). The moving party
may present its own evidence or, where the non-moving party has the burden of proof,
simply point out to the court that “the non-moving party has failed to make a sufficient
showing on an essential element of her case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
“When considering whether there exist genuine issues of material fact, the court is
required to examine the evidence of record in the light most favorable to the party opposing
summary judgment, and resolve all reasonable inferences in that party's favor.” Wishkin v.
Potter, 476 F.3d 180, 184 (3d Cir. 2007). Once the moving party has satisfied its initial
burden, the burden shifts to the non-moving party to either present affirmative evidence
supporting its version of the material facts or to refute the moving party's contention that the
facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256-57, 106 S. Ct.
2505. The Court need not accept mere conclusory allegations, whether they are made in
the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110
S. Ct. 3177, 111 L. Ed. 2d 695 (1990).

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“To prevail on a motion for summary judgment, the non-moving party must show
specific facts such that a reasonable jury could find in that party's favor, thereby establishing
a genuine issue of fact for trial.” Galli v. New Jersey Meadowlands Comm'n, 490 F.3d 265,
270 (3d Cir. 2007) (citing Fed. R. Civ. P. 56(e)). “While the evidence that the non-moving
party presents may be either direct or circumstantial, and need not be as great as a
preponderance, the evidence must be more than a scintilla.” Id. (quoting Hugh v. Butler
County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)). In deciding a motion for summary
judgment, “the judge's function is not himself to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477
U.S. at 249, 106 S. Ct. 2505.
B.

Fourteenth Amendment Claim
In Count I of the Complaint, Plaintiffs assert a substantive due process claim brought

pursuant to 42 U.S.C. § 1983. Section 1983 provides that “[e]very person who, under color
of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be
subjected, any citizen . . . or other person . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured, . . .” 42
U.S.C. § 1983. “To establish liability under 42 U.S.C. § 1983, a plaintiff must show that the
defendants, acting under color of law, violated the plaintiff's federal constitutional or
statutory rights, and thereby caused the complained of injury.” Elmore v. Cleary, 399 F.3d
279, 281 (3d Cir. 2005) (citing Sameric Corp. of Del., Inc. v. City of Phila., 142 F.3d 582,
590 (3d Cir. 1998)).
Plaintiffs’ § 1983 claim is based on a violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment
provides, in pertinent part, that a state shall not “deprive any person of life, liberty, or
property, without due process of law; . . .” U.S. Const. amend. XIV, § 1. Due process under

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the Fourteenth Amendment has both “substantive and procedural components.” Evans v.
Sec'y Pa. Dep't of Corr., 645 F.3d 650, 658 (3d Cir. 2011). Only the substantive component
of the Due Process Clause is at issue here.
In this case, both D.B. and his parents contend that their constitutional rights were
violated. With respect to D.B., Plaintiffs assert that he was deprived of his liberty interest
and right to bodily integrity as a result of student-on-student bullying in first grade and
teacher-on-student bullying in second grade. (Compl., ¶ 56.) Specifically, Plaintiffs argue
that the District had a duty to protect D.B. from bullying by other students based on the
District’s special relationship with its student and/or pursuant to the state-created danger
theory of liability. In addition, Plaintiffs contend that D.B. was deprived of his constitutional
rights when he was bullied by Mrs. Wilcha. And, Plaintiffs conclude that the District is liable
for the bullying of D.B. because it failed to adequately train its employees on bullying. Mr.
and Mrs. Bridges, in comparison, maintain that the District interfered with their rights to
make decisions regarding the custody and care of D.B. (Compl., ¶ 68.)
1.

Deprivation of D.B.’s Substantive Due Process Rights

The Third Circuit has recognized that “[i]ndividuals have a constitutional liberty
interest in personal bodily integrity that is protected by the Due Process Clause of the
Fourteenth Amendment.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008)
(citing D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1368 (3d
Cir. 1992)). D.B. contends that this liberty interest was violated as a result of bullying by
other students in first grade and Mrs. Wilcha in second grade. Because D.B.’s claims of
bullying against his classmates and Mrs. Wilcha implicate different issues, I will address
them separately.
Regarding the conduct of D.B.’s first-grade classmates, “[g]enerally, the Due Process
Clause does not impose an affirmative duty upon the state to protect citizens from the acts

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of private individuals.” Sanford v. Stiles, 456 F.3d 298, 303-04 (3d Cir. 2006) (citing
DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 198-200, 109 S. Ct.
998, 103 L. Ed. 2d 249 (1989)). The Third Circuit, however, has recognized two exceptions
to this general rule. See id. at 304. “First, the state has a duty to protect or care for
individuals when a ‘special relationship’ exists. Second, the state has a duty when a
‘state-created danger’ is involved.’” Id. (citation and internal footnote omitted). Plaintiffs
argue that both of these exceptions are applicable in this case.
a.

A “special relationship” did not exist between D.B. and the
District.

Plaintiffs first argue that the circumstances existing between D.B. and the District
gave rise to a “special relationship” in this case. According to Plaintiffs, the following
circumstances evidence the existence of a “special relationship” between D.B. and the
District: (1) Pennsylvania’s compulsory attendance laws for children between the ages of
eight and seventeen; (2) the District’s in loco parentis authority; (3) a parent is not free to
withdraw a child absent egregious conditions; (4) the State has authority over what students
wear and how they must behave; (5) officials can proceed against a child in juvenile court
for misbehavior; and (6) the restrictions on students’ liberty is reflected in the Scranton
School District Handbooks. (Doc. 51, 6.)
I need look no further than the Third Circuit’s en banc 2013 decision in Morrow v.
Balaski, 719 F.3d 160 (3d Cir. 2013) (en banc) to conclude that no “special relationship”
existed between D.B. and the District in this case.1 In Morrow, two sisters and their parents
brought an action against a school district and the district’s assistant principal alleging that
the sisters “were subjected to bullying in the form of a series of threats, assaults, and acts
of racial intimidation at the hands of a fellow student and her accomplice.” Id. at 163. The

1

Surprisingly, neither Defendant nor Plaintiffs cite Morrow in their summary
judgment submissions.
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district court dismissed the plaintiffs’ complaint, holding that the school did not have a
“special relationship” with the students giving rise to a constitutional duty to protect them
from harm from the other students given the facts alleged in the complaint. See id. at 164.
The appeal was initially argued before a panel, but the Third Circuit subsequently granted
en banc review. See id.
The en banc Third Circuit affirmed the judgment of the district court and held that the
allegations in the complaint failed to establish a “special relationship” between the students
and the school. See id. The majority noted that every “Circuit Court of Appeals that has
considered this issue in a precedential opinion rejected the argument that a special
relationship generally exists between public schools and their students.” Id. at 170 (citations
omitted).

And, while the Third Circuit did not “foreclose the possibility of a special

relationship arising between a particular school and particular students under certain unique
and narrow circumstances,” id. at 171 (emphasis in original), such circumstances “must be
so significant as to forge a different kind of relationship between a student and a school
than that which is inherent in the discretion afforded school administrators as part of the
school’s traditional in loco parentis authority or compulsory attendance laws.” Id.
In light of Morrow, Pennsylvania’s compulsory attendance laws or the school’s
traditional in loco parentis authority fail to establish a special relationship between D.B. and
the District. Moreover, the additional circumstances cited by Plaintiffs in their brief in
opposition to the District’s motion for summary judgment, i.e., the ability to control students’
behavior and dress and the authority to proceed against students in juvenile court for
misbehavior, fail to establish a special relationship between this particular student and this
particular school district. In fact, the discussion on this issue in Plaintiffs’ brief is a nearly
word-for-word recitation of a substantial portion of the principal dissenting opinion in that
case. See Morrow, 719 F.3d at 189-92 (Fuentes, J., dissenting). The dissent’s discussion

14

was addressed and rejected by the Morrow majority. See Morrow, 719 F.3d at 171. As
stated by the Morrow majority:
The circumstances that our dissenting colleagues rely upon to insist that
a special relationship exists under the facts alleged here are not “certain
narrow” circumstances at all. Instead, they are endemic in the relationship
between public schools and their students. The dissent would hold that a
special relationship exists such that “Blackhawk undertook a limited obligation
to keep the Morrows safe . . . because Blackhawk compelled school
attendance, exercised extensive control over not only the student victims but
also the specific threat at issue in the case- a violent bully subject to two
restraining orders- and enforced school policies that prevented the Morrows
from being fully able to protect themselves.” Fuentes Dissent 188. However,
those factors do not distinguish the circumstances here from those that arise
in the general relationship between public schools and their students.
...
In arguing to the contrary, our dissenting colleagues exaggerate the extent of
a school's control over its students. Judge Fuentes insists that “[t]he State's
authority over children while they are in school extends beyond their well-being
and is nearly absolute.” Fuentes Dissent 191 (emphasis added). However, the
mere fact that a school can require uniforms, 24 Pa. Stat. Ann. § 13-1317.3,
or prescribe certain behavior while students are in school, 22 Pa.Code § 12.2,
does not suggest a special relationship at all. Rather, such commonly
accepted authority over student conduct is inherent in the nature of the
relationship of public schools and their pupils.
Id.
Pursuant to Morrow and based on the facts in the record, a special relationship did
not exist between D.B. and the District. Thus, the District did not have a duty to protect D.B.
from harm from other students under the special relationship exception.
b.

The District’s actions did not create or enhance a danger that
deprived D.B. of his substantive due process rights.

Plaintiffs next argue that the District had a duty to protect D.B. because they created
a situation that was dangerous to D.B. The Third Circuit has “recognized that a state actor
may be held liable under the ‘state-created danger’ doctrine for creating danger to an
individual in certain circumstances.” Henry v. City of Erie, 728 F.3d 275, 281 (3d Cir. 2013)
(citing Morrow, 719 F.3d at 176). Liability may attach under this doctrine “where the state
acts to create or enhance a danger that deprives the plaintiff of his or her Fourteenth

15

Amendment right to substantive due process.” Morrow, 719 F.3d at 177 (citing Kneipp v.
Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996)). To prevail on a state-created danger theory,
Plaintiffs must prove four elements:
1) the harm ultimately caused was foreseeable and fairly direct;
2) a state actor acted with a degree of culpability that shocks the conscience;
3) a relationship between the state and the plaintiff existed such that the
plaintiff was a foreseeable victim of the defendant's acts, or a member of a
discrete class of persons subjected to the potential harm brought about by the
state's actions, as opposed to a member of the public in general; and
4) a state actor affirmatively used his or her authority in a way that created a
danger to the citizen or that rendered the citizen more vulnerable to danger
than had the state not acted at all.
Id. (quoting Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006)).
Here, the District argues that Plaintiffs are unable to satisfy either the second or
fourth elements of this test. (Docs. 32, 12-13; 53, 12-14.) As to the second element, the
District asserts that Plaintiffs are unable to establish conscious shocking behavior because
it investigated all alleged incidents of reported harassment and there is no evidence in the
record that it ignored Plaintiffs’ complaints. (Doc. 53, 13.) Regarding the fourth element, the
District argues that the record is devoid of evidence “of an affirmative act which placed D.B.
in danger, or made him more vulnerable to harassment or cause him harm.” (Doc. 32, 13.)
Plaintiffs, however, contend that summary judgment is not warranted on the statecreated danger exception. (Doc. 51, 15.) Plaintiffs argue that the second prong of the statecreated danger test is satisfied because the evidence demonstrates that “William King and
Louis Paris acted in willful disregard for the safety of Plaintiff.” (Id.) And, as to the fourth
prong, Plaintiffs state: “Defendant by establishing its policies and practices regarding school
bullying but defectively failing to adequately train Principal Damiano and Leitzel therein,
created a danger to D.B. that would [sic] and/or render him more vulnerable to danger than
if Defendant had not acted.” (Id.)

16

Plaintiffs are unable to satisfy the fourth element because there was no affirmative
action by the District which made D.B. more vulnerable than he would have been had the
District done nothing at all. The Third Circuit has made clear that under the fourth element,
liability “is predicated upon the states’ affirmative acts which work to the plaintiffs’ detriments
in terms of exposure to danger. It is misuse of state authority, rather than a failure to use
it, that can violate the Due Process Clause.” Bright, 443 F.3d at 282 (internal citations and
quotation omitted). Accordingly, to establish the fourth element, Plaintiffs must identify “an
affirmative action, rather than inaction or omission.” Phillips v. Cnty. of Allegheny, 515 F.3d
224, 236 (3d Cir. 2008) (citations omitted). And, while the Third Circuit has emphasized that
“the line between action and inaction is not always easily drawn,” Morrow, 719 F.3d at 178,
it has “never found a state-created danger claim to be meritorious without an allegation and
subsequent showing that state authority was affirmatively exercised.” Bright, 443 F.3d at
282. But, the affirmative act requirement “is not intended to turn on semantics of act and
omission. Instead, the requirement serves to distinguish cases where officials might have
done more from cases where officials created or increased the risk itself.” Morrow, 719 F.3d
at 179 (alterations and citation omitted).
Plaintiffs have not identified any action by the District in this case that caused D.B.
to be more vulnerable than he would have been had the District not acted at all. Rather,
Plaintiffs contend that it was the District’s inaction, i.e., its failure to adequately train its
employees, (Doc. 51, 15), that put D.B. at an additional risk of harm. However, the Third
Circuit has stressed that “failures to act cannot form the basis of a valid § 1983 [state
created danger] claim.” Kaucher v. Cnty. of Bucks, 455 F.3d 418, 433 n.11 (3d Cir. 2006);
see also Bright, 443 F.3d at 284 (“mere failure to protect an individual against private
violence does not violate the Due Process Clause.”); Carlin v. Marren, No. 12-2988, 2012
WL 4717899, at *1 (E.D. Pa. Oct. 3, 2012) (“In pleading her state-created danger claim,

17

Plaintiff points to the following conduct committed by Rescue Squad: failure to provide its
members with sexual harassment training, failure to impose bunkroom policies, failure to
maintain separate sleeping facilities for men and women, failure to implement adequate
security measures, failure to train and supervise members and failure to restrict access to
the Rescue Squad building. These allegations amount to nothing more than a series of
actions not taken by Defendant. As failures to act do not render Defendant liable under the
fourth element, Plaintiff fails this element and cannot proceed on a state-created danger
claim.”); Nawuoh v. Venice Ashby Cmty. Ctr., 802 F. Supp. 2d 633, 642 (E.D. Pa. 2011)
(failure to train is not an affirmative act that satisfies the fourth element); Estate of
Pendelton ex rel. Pendelton v. Davis, No. 06-1945, 2007 WL 1300743, at *11 (M.D. Pa.
May 3, 2007) (failures of supervision or training do not meet the affirmative act requirement
of the state-created danger test). Moreover, it is difficult to see how the District’s claimed
failure to provide adequate training on its bullying policy “created a new danger for [D.B.]
or rendered [him] more vulnerable to danger than had the state not acted at all.” Morrow,
719 F.3d at 178. Likewise, insofar as Plaintiffs argue that the District failed to follow its
bullying policy, this is not the equivalent of an affirmative act under the circumstances. Cf.
Morrow, 719 F.3d at 178 (“we decline to hold that a school’s alleged failure to enforce a
disciplinary policy is equivalent to an affirmative act under the circumstances here.”).
Therefore, because the District did not affirmatively use its authority in a way that created
a danger to D.B. or that rendered D.B. more vulnerable to danger than had it not acted at
all, Plaintiffs are unable to establish a substantive due process claim under a state-created
danger theory.
c.

D.B. was not deprived of his constitutional rights by Mrs. Wilcha
and the District is not liable on a failure to train theory.

Plaintiffs also contend that D.B.’s constitutional rights were violated when he was
bullied by Mrs. Wilcha while he was in second grade. Plaintiffs argue that the District’s
18

liability is based on its failure to properly supervise and train its teachers and principals.
(Doc. 51, 10.) Because the facts when viewed in the light most favorable to Plaintiffs fail
to establish a violation of D.B.’s constitutional rights by Mrs. Wilcha, summary judgment in
the District’s favor will be granted on the claim that it failed to train and supervise its
teachers and principals.
As stated, the Due Process Clause protects an individual’s liberty interest in personal
bodily integrity. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (citing D.R.
v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1368 (3d Cir. 1992)).
Here, Plaintiffs argue that Mrs. Wilcha’s “abusive verbal and non-verbal abuse of D.B.”
violated his liberty interest. (Doc. 51, 2.)
To establish a substantive due process claim, a plaintiff must prove the
particular interest at issue is protected by the substantive due process clause
and the government's deprivation of that protected interest shocks the
conscience. . . . Deprivation violates due process only when it shocks the
conscience, which encompasses only the most egregious official conduct. . .
. While the meaning of the [shocks the conscience] standard varies depending
upon factual context, merely alleging an improper motive is insufficient, even
where the motive is unrelated to the merits of the underlying decision.
Chainey v. Street, 523 F.3d 200, 219-220 (3d Cir. 2008) (internal citations and quotations
omitted).
The “shocks the conscience standard [applies] to federal claims alleging the use of
excessive force by public school officials.” Gottlieb ex rel. Calabria v. Laurel Highlands Sch.
Dist., 272 F.3d 168, 172 (3d Cir. 2001) (citations omitted). The Third Circuit has adopted
a four part test for analyzing claims against a school official involving physical abuse or
corporal punishment:
a) Was there a pedagogical justification for the use of force?; b) Was the force
utilized excessive to meet the legitimate objective in this situation?; c) Was the
force applied in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the very purpose of causing harm?; and d) Was
there a serious injury?
Gottlieb, 272 F.3d at 173. Although Plaintiffs’ submissions suggest that Mrs. Wilcha

19

physically abused D.B., there is no evidence in the record that Mrs. Wilcha used physical
force against him. Rather, as Plaintiffs’ claim implicates non-physical harassment, such as
verbal abuse and throwing/emptying D.B.’s desk, at issue is whether the evidence viewed
in the light most favorable to them demonstrates a violation of D.B.’s constitutional rights.
Claims involving “[n]on-physical types of harassment, including verbal abuse, require
the same ‘shocks the conscience’ analysis.” S.M. v. Lakeland Sch. Dist., 148 F. Supp. 2d
542, 547 (M.D. Pa. 2001), aff'd, 33 F. App’x 635 (3d Cir. 2002); M.M. v. Tredyffrin/Easttown
Sch. Dist., No. 06-1966, 2006 WL 2561242, at *13 (E.D. Pa. Sept. 1, 2006) (claims of “nonphysical harassment and psychological abuse” must also meet the shocks the conscience
standard). However, “[t]hose courts that have considered instances of psychological or
verbal abuse by government actors have typically held that such conduct alone was not
severe enough to qualify as a constitutional tort actionable under § 1983.” S.M., 148 F.
Supp. 2d at 542. For example, in Abeyta v. Chama Valley Independent School District, 77
F.3d 1253, 1255 (10th Cir. 1996), the plaintiff, a sixth grade student, claimed that her
teacher called her a prostitute in front of her class and continued to call her that for over a
month-and-a-half. The Tenth Circuit affirmed the district court’s entry of summary judgment
for the defendant, stating:
We are unwilling to hold that actions which inflict only psychological damage
may never achieve the high level of a brutal and inhuman abuse of official
power literally shocking to the conscience, necessary to constitute a
substantive due process violation. We can imagine a case where
psychological harassment might be so severe that it would amount to torture.
. . . But we are sure that the actions alleged in the instant case do not reach
that level- whether they were done with indifference or with deliberate intent
to cause psychological harm. Having said this, if defendant acted as alleged,
we strongly condemn his behavior. A teacher who calls a student a prostitute
engages in a complete abuse of his authority. To do so repeatedly, and turn
a deaf ear as other students follow the teacher's example, is flagrant
misconduct. But we must leave plaintiff to whatever relief statutory or state tort
law may afford her.
Id. at 1257-58 (internal citation and quotation omitted). Likewise, in Doe v. Gooden, 214
F.3d 952, 954-55 (8th Cir. 2000) an elementary teacher was accused of “yelling and
20

screaming at students, using foul language, telling students that their handwriting ‘sucks,’
telling students that ‘if they had one eye and half a brain, you could do this,’ calling students
‘stupid,’ and referring to students as ‘bimbos,’ ‘fatso,’ and the ‘welfare bunch.’” On appeal,
the Eighth Circuit concluded:
Viewing the evidence in the light most favorable to the plaintiffs, [the teacher]
clearly used inappropriate language in his elementary classroom, and while we
are appalled at his demeaning and belittling references to his students, his use
of patently offensive language did not violate his students' constitutional rights.
Verbal abuse is normally not a constitutional violation.
Id. at 955 (citation omitted). In Costello v. Mitchell Public School District, 266 F.3d 916, 919,
921 (8th Cir. 2001), a teacher called a student “retarded, stupid, and dumb” in front of her
classmates and threw a notebook at the student hitting her in the face after she got a bad
grade on an assignment. Although the Eighth Circuit found the teacher’s conduct to be
“singularly unprofessional,” it nevertheless concluded that “the plaintiffs have not raised a
genuine issue of material fact on whether his behavior was sufficiently shocking to the
conscience to state a substantive due process claim.” Id. at 921. And, in S.M., Judge
Vanaskie, who was then Chief Judge of this Court, concluded that a student’s fifth grade
teacher did not violate her constitutional rights when, on one occasion, he “repeatedly yelled
at her during class, while pointing his finger inches from her face.” S.M., 148 F. Supp. 2d
at 547. In reaching that conclusion, Judge Vanaskie explained:
Although each determination of whether state conduct shocks the conscience
is necessarily fact-specific and unique to the particular circumstances in which
the conduct occurred, the established precedents, consistent with the
Supreme Court's admonition against an overly generous reading of the
substantive component of the due process clause, compel the conclusion that
[the teacher’s] conduct, although unfortunate, is not conscience shocking.
[The teacher’s] conduct consisted of repeatedly questioning [the student]
about the math problem and reprimanding her for cursing in class. Plaintiff
has not established how [the teacher’s] conduct, even if considered
inappropriate, could be construed as sadistic or malicious. [The teacher] may
have been overzealous in conducting his class, but his conduct could not be
termed brutal.
Id. at 548 (internal citation and quotation omitted). Other courts have similarly noted that
verbal abuse generally does not give rise to a constitutional violation under § 1983. See,
21

e.g., Wyatt v. Fletcher, 718 F.3d 496, 504 (5th Cir. 2013) (“verbal abuse does not give rise
to a constitutional violation under 42 U.S.C. § 1983, so any yelling that may have occurred
is not actionable.”); Acadia Ins. Co. v. Hinds Cnty. Sch. Dist., No. 12-188, 2013 WL
2182799, at *5 n.4 (S.D. Miss. May 20, 2013) (“It is self-evident that a student’s
constitutional interest in bodily integrity does not extend to allegations of verbal abuse.”);
Faccio v. Eggleston, No. 10-783, 2011 WL 3666588, at *12 (N.D.N.Y. Aug. 22, 2011)
(“verbal abuse alone is not normally a constitutional violation- even in the context of
teachers belittling students.”); G.C. v. Sch. Bd. of Seminole Cnty., 639 F. Supp. 2d 1295,
1304 (M.D. Fla. 2009) (“the use of foul or belittling language does not amount to a violation
of a plaintiff's constitutional rights.”).
In this case, viewing the evidence in the record in the light most favorable to
Plaintiffs, Mrs. Wilcha did not engage in conscience-shocking behavior sufficient to support
a substantive due process claim. Here, the evidence demonstrates that Mrs. Wilcha called
D.B. “stupid” and a “dummy” on a few occasions, that she was mean to him, and that she
threw or turned over his desk three times. While such conduct is certainly unprofessional
and inappropriate, in light of the authority detailed above, Mrs. Wilcha’s behavior was not
sadistic or malicious.

Thus, Mrs. Wilcha’s actions towards D.B. did not violate his

substantive due process rights.
Nevertheless, even though Mrs. Wilcha did not deprive D.B. of his constitutional
rights, Third Circuit precedent establishes that the liability of a municipality under § 1983 for
a substantive due process violation does not depend on the liability of an individual official.
See Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996). Restated, “the fact that a
teacher’s conduct does not shock the conscience does not necessarily relieve the school
district of liability.” S.M., 148 F. Supp. 2d at 550. In this case, Plaintiffs contend that the
District is liable based on its failure to train and supervise its teachers and principals.

22

Here, the claim against the District “fails as a matter of law because plaintiff has not
established that [D.B.] suffered the violation of a constitutional right.

As previously

discussed, [D.B.’s] allegations relate[ ] only to what [can be] characterize[d] as verbal and
psychological abuse; there is no evidence in the record as to any physical force used
against [D.B.].” S.M., 148 F. Supp. 2d at 551. And, as stated in S.M., “no court has held
that the concept of liberty extends to freedom from verbal abuse or harassment.” Id.
Accordingly, Mrs. Wilcha’s conduct of belittling D.B., throwing a desk, making him sit by an
open window when it was cold outside, and being mean to him did not violate his
constitutional rights. See, e.g., id. at 552; see also Doe, 214 F.3d at 955 (“while we are
appalled at [the teacher’s] demeaning and belittling references to his students, his use of
patently offensive language did not violate his students’ constitutional rights.”). Thus,
because D.B. was not deprived of an interest protected by the Fourteenth Amendment,
Plaintiffs cannot recover from the District under § 1983 for its failure to train its teachers or
principals. See S.M., 148 F. Supp. 2d at 552; accord Crawford v. Lappin, 446 F. App’x 413,
416 (3d Cir. 2011) (“the absence of an underlying constitutional violation precludes any
supervisory liability on a ‘knowledge or acquiescence’ or ‘failure to train’ theory”); Kneipp,
95 F.3d at 1212 n.26 (absent underlying constitutional violation, failure to train claim against
a municipality cannot stand).
In granting summary judgment in favor of the District on D.B.’s due process claims,
I do not condone Mrs. Wilcha’s conduct towards an elementary school student.
Nevertheless, “‘the Constitution does not provide judicial remedies for every social ill,’”
Morrow, 719 F.3d at 176 (quoting Lindsey v. Normet, 405 U.S. 56, 74, 92 S. Ct. 862, 31 L.
Ed. 2d 36 (1972)), and “‘the due process clause is not a surrogate for local tort law or state
statutory and administrative remedies.’” id. (quoting Hasenfus v. LaJeunesse, 175 F.3d 68,
74 (1st Cir. 1999)). Thus, while D.B.’s claims involving harassment and bullying by a

23

teacher are troubling, the conduct at issue does not support a substantive due process
violation. Rather, D.B.’s claims of abuse are appropriately addressed through common law
tort claims. See, e.g., M.M., 2006 WL 2561242, at *13; see also County of Sacramento v.
Lewis, 523 U.S. 833, 854 n.14 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998) (“To say that due
process is not offended by [Mrs. Wilcha’s] conduct described here is not, of course, to imply
anything about its appropriate treatment under state law.”); cf. Morrow, 719 F.3d at 176-77
(noting that Pennsylvania courts have held that school districts are “the beneficiaries of
immunity pursuant to the Political Subdivision Tort Claim Act,” but recognizing that state
legislatures retain the authority to reconsider and change such restrictions).
2.

Deprivation of Mr. and Mrs. Bridges’ Substantive Due Process Rights

Mr. and Mrs. Bridges also allege in the Complaint that the District violated their rights
related to the care, custody, and control of D.B. (Compl., ¶ 68.)
“‘[T]he Due Process Clause of the Fourteenth Amendment protects the fundamental
right of parents to make decisions concerning the care, custody, and control of their
children.’” J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 933 (3d Cir. 2011)
(en banc) (quoting Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d 49
(2000)). “In the context of parental liberty interests, . . . the Due Process Clause only
protects against deliberate violations of a parent’s fundamental rights- that is, where the
state action at issue was specifically aimed at interfering with protected aspects of the
parent-child relationship.” McCurdy v. Dodd, 352 F.3d 820, 827-28 (3d Cir. 2003) (citing
Valdivieso Ortiz v. Burgos, 807 F.2d 6, 8 (1st Cir. 1986)). “A conflict with the parents’ liberty
interest will not be lightly found, and indeed, only occurs when there is some ‘manipulative,
coercive, or restraining conduct by the State.” J.S., 650 F.3d at 933-34 (quoting Anspach
v. City of Phila, 503 F.3d 256, 266 (3d Cir. 2007)). “In other words, the parents’ liberty
interest will only be implicated if the state’s action ‘deprived them of their right to make

24

decisions concerning their child,’ and not when the action merely ‘complicated the making
and implementation of those decisions.’” Id. at 934 (quoting C.N. v. Ridgewood Bd. of
Educ., 430 F.3d 159, 184 (3d Cir. 2005)).
The District’s motion for summary judgment on the parents’ substantive due process
claim will be granted. For one, Plaintiffs did not provide any response to the District’s
argument that the record is devoid of evidence supporting Mr. and Mrs. Bridges’ substantive
due process claim. As this Court recently noted, “[c]ourts within the Third Circuit have
routinely held that a non-movant's failure to offer any response to an opposing party's
summary judgment arguments constitutes an abandonment of claims left undefended.”
Diodato v. Wells Fargo Ins. Servs., USA, Inc., No. 12-2454, 2014 WL 4411591, at *9 (M.D.
Pa. Sept. 8, 2014) (citations omitted). Furthermore, there is no evidence of state action
directed at interfering with protected aspects of the parent-child relationship or that the
District deprived the Bridges of their right to make decisions concerning D.B. Summary
judgment will be granted in favor of the District on the parents’ due process claim.
C.

Title VI Claim
Plaintiffs also seek relief pursuant to Title VI of the Civil Rights Act of 1964 for

harassment and a racially hostile environment. Title VI provides that “[n]o person in the
United States shall, on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. Public
educational institutions receiving federal funds are subject to this directive. 34 C.F.R. §
100.13.2

2

In Manning v. Temple University, 157 F. App’x 509, 513 (3d Cir. 2005), the Third
Circuit noted that racial discrimination claims under Title VI are considered under
the McDonnell Douglas framework. The court noted, however, that it had “not
adapted the McDonnell Douglas prima facie test to the education discrimination
25

Title VI prohibits intentional violations of the statute, and “a plaintiff may sue a school
for money damages for its failure to address a racially hostile environment.” Whitfield v.
Notre Dame Middle Sch., 412 F. App’x 517, 521 (3d Cir. 2011) (citing Saxe v. State Coll.
Area Sch. Dist., 240 F.3d 200, 206 n.5 (3d Cir. 2001) (suggesting that Title VI hostile
environment claims may lie)). “In the educational setting, a school district is liable for
intentional discrimination when it has been ‘deliberately indifferent’ to teacher or peer
harassment.” Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 665 (2d Cir. 2012) (citing,
inter alia, Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633, 119 S. Ct. 1661, 143 L.
Ed. 2d 839 (1999)). Restated, “a plaintiff may recover for alleged ‘severe, pervasive, and
objectively offensive’ student-on-student harassment if the school ‘acts with deliberate
indifference to known acts of harassment.’” Whitfield, 412 F. App’x at 521 (quoting Davis,
526 U.S. at 633, 119 S. Ct. 1661). This requires that the school has “actual knowledge” of
the harassment. Davis, 526 U.S. at 650, 119 S. Ct. 1661. A school is liable for a claim of
teacher or peer harassment only when its actions are “clearly unreasonable in light of the
known circumstances.” Davis, 526 U.S. at 648, 119 S. Ct. 1661; Zeno, 702 F.3d at 666;
Whitfield, 412 F. App’x at 521. “A district court may conclude on a motion for summary
judgment that a ‘response is not clearly unreasonable as a matter of law.’” Whitfield, 412
F. App’x at 521 (quoting Davis, 526 U.S. at 649, 119 S. Ct. 1661).
First, with respect to the peer harassment of D.B. while he was in first grade,
Plaintiffs fail to establish a hostile environment claim. “Whether [race]-oriented conduct
rises to the level of actionable ‘harassment’ thus ‘depends on a constellation of surrounding
circumstances, expectations, and relationships,’ including, but not limited to, the ages of the

context,” and it declined to do so in Manning because “under any rendering of the
test, [the plaintiff] fail[ed] to raise the required inference of discrimination . . . .”
Id.
26

harasser and the victim and the number of individuals involved.” Davis, 526 U.S. at 651, 119
S. Ct. 1661 (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 82, 118 S.
Ct. 998, 140 L. Ed. 2d 201 (1998)). “Damages are not available for simple acts of teasing
and name-calling among school children, however, even where these comments target
differences in [race]. Rather, in the context of student-on-student harassment, damages
are available only where the behavior is so severe, pervasive, and objectively offensive that
it denies its victims the equal access to education that Title [VI] is designed to protect.” Id.
at 652, 119 S. Ct. 1661. Here, Plaintiffs fail to establish that the difficulty D.B. experienced
in first grade was racially motivated. Indeed, Plaintiffs have not cited any evidence that
D.B.’s experience in first grade implicated his race, let alone evidence that those incidents
rose “to the level of severe and pervasive harassment having a systemic effect on an
African-American student’s access to education at [the Scranton School District].” Whitfield,
412 F. App’x at 522.
Moreover, even if Plaintiffs established actionable harassment while D.B. was in first
grade, they fail to demonstrate that the District acted with deliberate indifference. “[C]ourts
should refrain from second-guessing the disciplinary decisions made by school
administrators.” Davis, 526 U.S. at 648, 119 S .Ct. 1661. School administrators act with
deliberate indifference “only where the [school's] response to the harassment or lack thereof
is clearly unreasonable in light of the known circumstances.” Id. The evidence in the record
confirms that the incidents in first grade involving D.B. were reported to the school principal,
Ms. Leitzel. (D.B. Dep., 39:23-40:7.) Following these incidents, D.B.’s classroom was
changed three or four times that year, and Ms. Leitzel did that to make D.B. comfortable.
(Mrs. Bridges Dep., 40:9-22.) And, while D.B. may still have been shouted at or hit, the
bullying issues were largely resolved at that point. (Id. at 41:6-12.) In light of this evidence,
it is apparent that Ms. Leitzel responded to the incidents of harassment involving D.B. in first

27

grade. Thus, the record does not support a basis to find that the District’s response to the
bullying of D.B. in first grade was clearly unreasonable in light of the known circumstances.
The District is therefore entitled to summary judgment on Plaintiffs’ hostile environment
claim involving peer harassment of D.B. while he was in first grade.
Second, Mrs. Wilcha’s conduct towards D.B. fails to establish an actionable hostile
environment claim under Title VI. As indicated, a racially hostile environment requires
Plaintiffs to show “(1) that racial harassment was so severe, pervasive, and objectively
offensive that it deprived [D.B.] of access to educational opportunity and (2) that the school
acted with deliberate indifference to the harassment.” Elliott v. Del. State Univ., 879 F.
Supp. 2d 438, 446 (D. Del. 2012) (citing Davis, 526 U.S. at 648-52, 119 S. Ct. 1661).
Accordingly, Plaintiffs must demonstrate that the harassment of D.B. was based on race.
Accord Doe v. Galster, 768 F.3d 611 (7th Cir. 2014) (“Title VI protects students from
discrimination only if it is based on race, color, or national origin . . . .”); Karlen v. Landon,
503 F. App’x 44, 46 (2d Cir. 2012) (to succeed on Title VI claim, a plaintiff must prove,
among other elements, that “the child in question was in fact harassed . . . based on race”);
Stewart v. Moody, No. 12-338, 2012 WL 3184465 at *1 (W.D. Wis. June 19, 2012)
(“Harassment by an instructor at a public institution could violate federal law under some
circumstances, if the harassment was sufficiently severe or pervasive and it was motivated
by a protected characteristic such as race or sex.”)
Plaintiffs fail to establish a Title VI hostile environment claim based on Mrs. Wilcha’s
conduct while D.B. was in second grade. Initially, Plaintiffs fail to identify evidence in the
record that D.B.’s experiences in Mrs. Wilcha’s class were racially motived or which permit
an inference of discrimination. Plaintiffs contend that Mrs. Wilcha’s treatment of D.B. was
based on race because he was the only African-American student in the class, he received
detention more than other students, she yelled at him and was mean to him, and his

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strawberry allergy was treated differently than another student’s peanut allergy. But,
besides identifying D.B. as the only African-American student in Mrs. Wilcha’s classroom,
Plaintiffs do not point to any evidence in the record indicating that D.B.’s experiences in
second grade were racially motivated or related to race.
Moreover, even if this conduct was based on D.B.’s race or permits an inference of
discrimination, Plaintiffs have not shown evidence that it was severe, pervasive, and
objectively offensive so as to deprive D.B. of access to educational opportunities. As
stated, the harassment D.B. was subject to in second grade included Mrs. Wilcha being
mean to him, throwing his desk on three occasions, giving him detention, and making him
sit by an open window when it was cold or a closed window when it was hot. These
incidents, however, stand in contrast to the behavior courts have found to be sufficiently
indicative of persistent and pervasive racial harassment. See, e.g., Zeno, 702 F.3d at 66667 (evidence of harassment over three-year period included references to lynching, physical
attacks, and verbal abuse, such as being called “a ‘nigger’ nearly every day.”); Bryant v.
Indep. Sch. Dist. No. I-38, 334 F.928, 932-34 (10th Cir. 2003) (allegations of racial
harassment included “racial slurs, graffiti inscribed in school furniture, and notes placed in
students' lockers and notebooks[, and] where Caucasian males were allowed to wear
T-shirts adorned with the confederate flag, swastikas, KKK symbols, and hangman nooses
on their person and their vehicles.”); Monteiro v. Tempe Union High Sch. Dist., 158 F.3d
1022, 1034 (9th Cir. 1998) (sufficient allegations of actionable harassment where AfricanAmerican students “attended a school where they were called ‘niggers’ by white children,
and where that term was written on the walls of the buildings in which they were supposed
to learn civics and social studies.”); Fennell v. Marion Ind. Sch. Dist., 963 F. Supp. 2d 623,
644-46 (W.D. Tex. 2013) (use of racial slurs over a number of years and three incidents
involving animation of a noose or an actual noose were severe and pervasive).

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In addition, even if Mrs. Wilcha’s treatment of D.B. was racially motivated and
deemed severe and pervasive, the hostile environment claim with respect to that conduct
would fail because the District’s conduct was not clearly unreasonable in light of the known
circumstances.

Under Title VI, “a school district must know of the harassment.

Constructive knowledge is not enough; only actual knowledge is a predicate to liability.”
Zeno, 702 F.3d at 666. Here, other than informing Ms. Damiano of the desk throwing by
Mrs. Wilcha at the April 26, 2012 meeting, Plaintiffs never informed anyone that D.B. was
being harassed by Mrs. Wilcha until the meeting with Mr. Paris on June 8, 2012.3 Following
that meeting, Mr. Paris offered and provided a boundary exception to the Bridges to allow
D.B. to attend a different school in the District. And, although Mr. Paris would not excuse
D.B. from the last few days of school that year, his conduct was not deliberately indifferent
or clearly unreasonable. D.B. would have completed the second grade within two weeks
and he would no longer have been a student in Mrs. Wilcha’s class. Additionally, Mr. Paris
offered to allow D.B. to attend another school in the District the following year. Accordingly,
Plaintiffs are unable to establish a hostile environment claim based on D.B.’s experience
while a student in Mrs. Wilcha’s classroom in second grade, and the District is entitled to
summary judgment on Plaintiffs’ Title VI claims.
III. Conclusion
For the above stated reasons, the District’s motion for summary judgment will be
granted. Judgment will be entered in favor of the District and against Plaintiffs on all claims.
An appropriate order follows.
November 6, 2014
Date

3

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

Although Mrs. Bridges informed Mr. Paris of the bullying, it is unclear from the
record whether she indicated that Mrs. Wilcha’s conduct was racially motivated.
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