Mother Doe 203 v. Berkeley County School District et al

Filing 59

ORDER granting in part 38 Motion for Summary Judgment and remanding case to state court. Signed by Honorable Patrick Michael Duffy on 11/09/2016.(adeh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Mother Doe 203, on her own behalf
and on behalf of her minor child, Jane
Doe 203,

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Plaintiff,
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v.
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Berkeley County School District,
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Defendant.
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C.A. No.: 2:14-cv-3575-PMD
ORDER

This matter is before the Court on Defendant Berkeley County School District’s summary
judgment motion (ECF No. 38). For the reasons stated herein, the Court grants the District’s
motion in part, declines to rule on the remainder of it, and remands this case to state court.
BACKGROUND
Jane Doe 203 received her middle school education at Marrington Middle School in
Goose Creek, South Carolina. This case arises out the conduct of Jane Doe’s classmate, WW,
who sexually harassed her several times at school in 2013.
The harassment began early that year, when Jane Doe and WW were sixth graders. The
two socialized at school and, for a time, had a “sixth-grade level relationship.” (Pl.’s Mem.
Opp’n Def.’s Mot. Summ. J., Ex., Tr. of Jane Doe 203 Dep., ECF No. 47-20, at 40). Sadly, WW
made the relationship an abusive one.

WW would sit next to her at lunch, touch her

inappropriately, and make her touch him inappropriately. Whenever she resisted, he threatened
to spread rumors that she was promiscuous.

No school employee observed WW’s conduct, and Jane Doe initially did not report it to
anyone at the school. However, after two or three weeks of WW’s abuse, she told her Mother.
On February 19, 2013, Mother went to the school with Jane Doe, where they reported the abuse
to principal James Spencer and guidance counselor Kevin Crawford. Spencer told Jane Doe that
the matter would be handled. Jane Doe then continued speaking with Crawford, who asked her
to write a statement explaining what WW had done to her. Jane Doe did so and included in her
statement the names of students who she believed witnessed the abuse. This was the first time
the school had received a report of WW engaging in inappropriate sexual behavior. 1
After Jane Doe finished writing her statement, Crawford gave it to assistant principal
Carol Fowler. Fowler reviewed the statement and then spoke with Jane Doe. Fowler then
questioned WW, who denied Jane Doe’s accusations. Like Jane Doe, WW gave Fowler the
names of several student witnesses to interview. Fowler spoke with the students Jane Doe and
WW named. None of them said they saw WW and Jane Doe engage in inappropriate touching.
Fowler called Mother to tell her that a sexual harassment form was being sent home for Jane Doe
and Mother to complete together. Fowler followed up with Jane Doe several times about the
form, but it was never returned to the school. After Fowler did not hear anything else from
Mother or Jane Doe on the matter for some time, she took no further investigative action.
Nevertheless, school officials directed WW to stay away from Jane Doe.
After that, WW left Jane Doe alone until May, when he kissed her one time without her
consent. Jane Doe did not report that incident. However, on May 20, another female student, S,
reported to Fowler that WW grabbed her in the library and said something lewd to her. Fowler
investigated the complaint over the next day by interviewing other students who were present
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1.
In her statement to Crawford, Jane Doe wrote that WW had harassed other girls before but had “never been
found out” by the school. (Pl.’s Mem. Opp’n Def.’s Mot. Summ. J., Ex., Jane Doe 203 statement dated Feb. 19,
2013, ECF No. 47-1, at 1).

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during the incident. At least two other girls (none of whom were Jane Doe) told Fowler that they
had overheard WW’s comments to S and that WW had also made inappropriate sexual
comments to them. 2 By the end of May 21, Fowler suspended WW from school for at least one
day. The record indicates this was WW’s last incident during the 2012–2013 school year.
In fall 2013, Jane Doe and WW were assigned to only one class together. They had little
interaction, and no incidents, until Monday, October 7, when WW approached Jane Doe in class
and made sexually suggestive gestures at her. The teacher of that class was present but did not
see the incident, as she was assisting other students. Jane did not report the offense to her
Mother or to any school employee.
The following morning, WW touched three girls inappropriately. The first two incidents
occurred together. WW groped Jane Doe in the presence of her female friend, EB. When EB
intervened, WW grabbed and fondled EB. Jane Doe and EB then ran away from WW. Neither
of them reported the attack to school personnel. The third incident occurred later that morning,
when WW inappropriately touched a third girl, AC. 3 AC reported that incident to Spencer
around 11:30 a.m. Under questioning, WW admitted to “dancing” in AC’s personal space. The
school’s administration then interviewed three of AC’s classmates about the incident. All three
students confirmed AC’s accusations. Spencer then reviewed WW’s disciplinary record and
suspended WW from school for the rest of the week.
On October 9, Spencer, Crawford, and another school administrator met to discuss WW.
They agreed to recommend that the District expel WW.

Spencer then called District

administrators to schedule an expulsion hearing and to request permission to extend WW’s
suspension up through the date of the hearing. The District set the hearing for October 17.
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2.

Prior to their interviews, none of those girls had complained to school personnel about WW’s behavior.

3. According to AC, WW also touched her inappropriately on either October 1 or 3. However, she did not report
that incident until October 14.

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Initially, neither Jane Doe nor EB told their parents about WW’s October 7 and 8
assaults. However, after school on October 9, EB told her parents what WW did to her and to
Jane Doe. EB’s father discussed the matter with Jane Doe’s Mother, who then asked Jane Doe
about it that evening. Jane Doe told Mother what WW had done to her that week. The next
morning, Mother and EB’s father went to the school and relayed to Spencer what their daughters
had told them the previous evening. A school resource officer then interviewed Jane Doe and
EB and obtained written statements from them. Because WW had already been suspended and
slated for expulsion, the school did not take any further disciplinary action for what he did to
Jane Doe and EB that week.
The District expelled WW after the October 17 hearing.
PROCEDURAL HISTORY
In 2014, Mother sued the District and Spencer in state court. She asserted a claim against
the District for violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et
seq., and as well as state-law claims for gross negligence and loss of services. She also asserted
a claim against Spencer for violation of 42 U.S.C. § 1983.
The District and Spencer removed the case to this Court and then filed an answer.
Thereafter, Spencer moved for judgment on the pleadings. This Court granted the motion and
dismissed Spencer from the case in October 2015.

After the remaining parties conducted

discovery, the District moved for summary judgment. Mother filed a response, and then the
District filed a reply. Accordingly, this matter is now ripe for consideration.
LEGAL STANDARD
To grant a motion for summary judgment, a court must find that “there is no genuine
dispute as to any material fact.” Fed. R. Civ. P. 56(a). The court is not to weigh the evidence

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but rather must determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). It must view all evidence in the light most favorable to the nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990). That
party has the “burden to persuade [the court] that there is indeed a dispute of material fact. It
must provide more than a scintilla of evidence—and not merely conclusory allegations or
speculation—upon which a jury could properly find in its favor.” CoreTel Va., LLC v. Verizon
Va., LLC, 752 F.3d 364, 370 (4th Cir. 2014) (citations omitted). Summary judgment is not “a
disfavored procedural shortcut,” but an important mechanism for weeding out “claims and
defenses [that] have no factual basis.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
“[W]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, . . . summary judgment is appropriate.” Teamsters Joint Council No. 83 v. Centra,
Inc., 947 F.2d 115, 119 (4th Cir. 1991).
DISCUSSION
The District contends it is entitled to summary judgment on all of Mother’s claims.
Mother counters that all her claims are viable for trial. For the following reasons, the Court
concludes that the District is entitled to summary judgment on the Title IX claim and that the
remaining claims, which all involve South Carolina law, are best resolved in state court.
I.

Title IX Claim

Title IX provides, in pertinent part, that “[n]o person in the United States shall, on the
basis of sex, . . . be subjected to discrimination under any education program or activity receiving
Federal financial assistance.” 20 U.S.C. § 1681(a). Title IX allows individuals to recover
damages for certain harms caused by funding recipients’ misconduct. 4 Davis ex rel. LaShonda
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4.

The District admits it receives federal funding.

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D. v. Monroe Cty. Bd. of Educ., 529 U.S. 629, 640, 641 (1999). Actionable misconduct includes,
inter alia, responding to known student-on-student harassment with deliberate indifference, id. at
651, and retaliating against people for complaining of sex-based discrimination, Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005). Mother has asserted both of those theories.
The Court addresses each seriatim.
A.

Deliberate Indifference

The Supreme Court’s decision in Davis “set the legal standard for Title IX claims
involving student-on-student sexual harassment.” Doe v. Erskine Coll., No. 8:04-cv-23001RBH, 2006 WL 1473853, at *8 (D.S.C. May 25, 2006). In Davis, the Supreme Court stated that
such harassment, “if sufficiently severe,” can constitute the sex-based discrimination that Title
IX prohibits. 526 U.S. at 650. Importantly, however, the Supreme Court stressed that Title IX
does not impute liability to schools for their students’ sexual harassment. See id. at 642; see also
S.B. ex rel. A.L. v. Bd. of Educ. of Harford Cty., 819 F.3d 69, 76 (4th Cir. 2016) (stating that
under Davis, “a school may not be held liable under Title IX . . . for what its students do”).
Instead, schools are liable only for their “own misconduct” in responding to the harassment—
that is, for making “an official decision . . . not to remedy” the harassment after actually learning
of it. Davis, 526 U.S. at 642.
Moreover, the mere fact that the school failed to discover or eliminate the harassment
will not create liability. S.B., 819 F.3d at 77; see also Doe v. Bd. of Educ., 605 F. App’x 159,
167 (4th Cir. 2015) (per curiam) (“To avoid liability, the institution is not required ‘to remedy
peer harassment’ or ‘to ensure that students conform their conduct to certain rules.’” (quoting
Davis, 526 at 648–49)). Even a negligent failure to discover or remedy the harassment will not
do. See Davis, 526 U.S. at 642, 649. Schools can be liable only when they actually know of the
abuse and then react with “deliberate indifference,” which Davis describes as a response, or lack
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thereof, that is “clearly unreasonable in light of known circumstances.”

Id. at 648.

In

appropriate cases, courts are free to hold that a school’s response was “not ‘clearly unreasonable’
as a matter of law” and grant summary judgment on that basis. Id. at 649.
After carefully reviewing the record in the light most favoring Mother, the Court
concludes this is one of those cases. Each time the school received a report of abuse involving
WW, it promptly investigated the complaint and took action against WW. In February 2013,
even after Fowler was unable to uncover any information to corroborate Jane Doe’s complaint
and Mother did not return the sexual harassment form, school officials told WW to stay away
from Jane Doe. After that, WW did not harass her again for several months. In May, Fowler
suspended WW shortly after several female students told her that WW had made inappropriate
sexual comments. Finally, WW was removed from school within a day of his October 8
harassment of AC; within two days, he was headed for expulsion. No reasonable jury could
construe the school’s responses as a “knowing refusal to take any action” in the face of identified
misconduct. See Davis, 526 U.S. at 651; see also Biggs v. Bd. of Educ. of Cecil Cty., 229 F.
Supp. 2d 437, 445 (D. Md. 2002) (finding no Davis deliberate indifference where “each and
every time Ms. Biggs complained, the school took action”).
To be sure, the school apparently did not take any action against WW for kissing Jane
Doe in May or abusing her in October. However, because Jane Doe never reported the unwanted
kiss, the school never knew about it, and Davis forecloses liability where there is no actual
knowledge of the abuse. See 526 U.S. at 642. Additionally, by the time the school learned about
her October abuses, it had already removed WW from the school and initiated proceedings to
ensure he could not return. Under those circumstances, it was “not ‘clearly unreasonable’ as a
matter of law” for the school to take no further action against WW. See id. at 649

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The Court also recognizes that, had the school responded differently to Jane Doe’s
February 2013 complaint, she and others might have been spared from some of WW’s later
abuses.

However, courts must “refrain from second-guessing” school administrators’

disciplinary decisions. Davis, 526 U.S. at 648 (citing New Jersey v. T.L.O., 469 U.S. 325, 342–
43 n.9 (1985)).
The Court laments the harm WW visited upon Jane Doe and, apparently, other girls.
However, Title IX requires the Court to focus on the school’s conduct, not on what WW did, and
“Davis sets the bar high for [establishing] deliberate indifference.” S.B., 819 F.3d at 76; see also
Davis, 526 U.S. at 642 (describing deliberate indifference as a “high standard”). No reasonable
jury could conclude the evidence in the record surmounts that high bar. There simply is no
“decision to remain idle” on this record—no “official decision by [the school] not to remedy”
known student-on-student harassment. See Davis, 526 U.S. at 641–42. Accordingly, the District
is entitled to summary judgment on Mother’s deliberate-indifference claim. 5
B.

Retaliation

In her brief in opposition to the District’s motion, Mother alleges that after she filed this
lawsuit, Spencer took retaliatory actions against Jane Doe. However, as the District points out,
Mother has never amended or supplemented her complaint to include a retaliation theory or the
post-filing incident. The District objects to Mother attempting to constructively amend her
complaint after discovery has ended and the deadline for amending pleadings has passed. The
Court agrees that it is inappropriate to consider Mother’s retaliation claim at this late juncture,

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5. To recover on a deliberate-indifference claim, a plaintiff must also show, inter alia, that the student-on-student
harassment is “so severe, pervasive, and objectively offensive that it can be said to deprive the victim[] of access to
the educational opportunities or benefits provided by the school.” Davis, 526 U.S. at 650. In addition to arguing
that it was not deliberately indifferent, the District contends Mother has failed to create a genuine issue of fact as to
that other requirement. Because this Court’s decision on the lack of deliberate indifference is dispositive, the Court
does not address that argument.

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and so it declines to do so. See Harris v. Reston Hosp. Center, LLC, 523 F. App’x 938, 946 (4th
Cir. 2013) (per curiam) (affirming district court’s refusal to consider a new legal argument
plaintiff raised at the summary judgment stage because “asserting a new legal theory for the first
time in opposing summary judgment amounted to constructive amendment of the amended
complaint and thus unfairly prejudiced the defendant”); United States ex rel. DRC, Inc. v. Custer
Battles, LLC, 472 F. Supp. 2d 787, 795–96 (E.D. Va. 2007) (declining to analyze new theory that
plaintiffs first asserted in opposition to summary judgment motion, as doing so “after the close of
discovery . . . would seriously undermine the fairness of the litigation and unfairly prejudice the
defendants”), aff’d, 562 F.3d 295 (4th Cir. 2009).
II.

Remaining Claims

Mother’s § 1983 claim against Spencer and her Title IX claim against the District
provided the jurisdictional footholds the defense needed to remove this case to federal court. See
28 U.S.C. §§ 1331, 1343. Because the parties are not citizens of different states, see 28 U.S.C.
§ 1332(a)(1), this Court had no independent jurisdiction over Mother’s state-law claims.
However, this Court’s supplemental jurisdiction allowed them to tag along. See 28 U.S.C.
§ 1367(a).
Having dismissed all of Mother’s federal claims, the Court “may decline to exercise
supplemental jurisdiction” over the state-law claims. 28 U.S.C. § 1367(c)(3); see also Clinton v.
Cty. of York, 893 F. Supp. 581, 588 (D.S.C. 1995) (“[T]he court has discretion whether or not to
exercise jurisdiction over pendent state-law claims once it has dismissed the federal claims to
which the state-law claims had attached.”). In United Mine Workers v. Gibbs, the Supreme
Court stated:
[P]endent jurisdiction is a doctrine of discretion, not of plaintiff’s right. Its
jurisdiction lies in considerations of judicial economy, convenience and fairness

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to litigants; if these are not present a federal court should hesitate to exercise
jurisdiction over state claims, even though bound to apply state law to them.
Needless decisions of state law should be avoided both as a matter of comity and
to promote justice between the parties, by procuring for them a surer-footed
reading of applicable law. Certainly, if the federal claims are dismissed before
trial, even though not insubstantial in a jurisdictional sense, the state claims
should be dismissed as well.
383 U.S. 715, 726 (1966). “Thus, the court should weigh the interests of comity and federalism
to determine ‘the most appropriate course of action.’” Doe v. Georgetown Cty. Sch. Dist., No.
2:14-CV-01873-DCN, 2015 WL 5923610, at *9 (D.S.C. Oct. 9, 2015) (quoting Clinton, 893 F.
Supp. at 588)).
This matter began in state court. With no federal issues remaining, it should return there.
The remaining claims all involve issues of South Carolina law, some of which the state’s courts
apparently may not have settled yet.

Thus, state court is the most appropriate forum to

adjudicate Mother’s remaining claims. The Court will remand this case to state court.
CONCLUSION
Therefore, for the foregoing reasons, it is ORDERED that the Berkeley County School
District’s summary judgment motion is GRANTED IN PART, in that Mother’s Title IX claim
is DISMISSED. The Court declines to rule on the remaining portions of the District’s motion.
It is FURTHER ORDERED that this case is REMANDED to the Court of Common
Pleas for Berkeley County, South Carolina.
AND IT IS SO ORDERED.

November 9, 2016
Charleston, South Carolina

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