Mihnovich et al v. Williamson County Board of Education et al

Filing 55

MEMORANDUM OPINION OF THE COURT signed by District Judge Todd J. Campbell on 11/3/2014. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.) (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

TRACY MIHNOVICH, et al.

)
)
) NO. 3-13-0379
) JUDGE CAMPBELL
)
)

v.
WILLIAMSON COUNTY BOARD
OF EDUCATION

MEMORANDUM
Pending before the Court is Defendant’s Motion for Summary Judgment (Docket No. 40).
For the reasons stated herein, Defendant’s Motion is DENIED as to Plaintiffs’ Title VI claims and
is moot with regard to Plaintiff’s state law claims. By agreement of the Plaintiff, Plaintiffs’ state law
claims are DISMISSED without prejudice.
FACTS
Plaintiffs filed this action as next friends on behalf of their son, NM, who was a student at
Grassland Middle School (“GMS”) in Williamson County, Tennessee. NM was born in Ethiopia and
adopted by the Mihnovich family in 2010. Plaintiffs contend that NM was the victim of an on-going
pattern of peer-on-peer, racially-motivated cyber-bullying, for which Defendant is liable because
of its deliberate indifference to the educational rights of NM and its negligent breach of its duty
under Tennessee law to protect NM from this on-going pattern of cyber-bullying. Plaintiffs assert
claims for damages under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq.; the
Tennessee Governmental Tort Liability Act, Tenn. Code Ann. §§ 29-20-101, et seq.; and the
Tennessee Bullying Prevention Act of 2012. Plaintiffs also bring a state law claim for malicious
harassment.

Plaintiffs’ Complaint alleges that, in early 2012, a certain student or students at GMS began
texting several of NM’s friends, impersonating NM and making vile and sexually explicit
statements. In addition, about the same time, NM began receiving texts containing racist and
profane statements, including a racist death threat. The Complaint avers that NM’s mother
requested a meeting and did meet with the principal of GMS and urged the administration of the
school to take action to protect her son.
Plaintiffs contend that NM continued to be targeted with racial slurs from other students.
Plaintiffs assert that, in February of 2013, they learned that a public Facebook page had been opened
entitled “Hate Black Shit N.M.! Who Else Does?” and included some 33 student subscribers, almost
all of whom were students at GMS. Thereafter, NM’s mother met with the principal, the School
Board attorney, two assistant principals, the school guidance counselor, and the mother of another
student to discuss what the school should do to protect NM. Plaintiffs allege that the school system
representatives told her they were not required to take any action because the bullying did not occur
during school hours. NM’s mother learned of further allegedly racist and bullying communications
and reported these incidents of bullying to Detective Amy Cole of the Williamson County Sheriff’s
Department.
In March of 2013, Plaintiffs requested that their attorney send a letter on their behalf to
Defendant’s attorney requesting that Defendant enforce its policies governing bullying by students
and take action to protect NM from further racist cyber-bullying attacks. Plaintiffs allege that the
School Board attorney responded that Defendant was “prohibited” from doing anything about the
cyber-bullying of NM.

2

SUMMARY JUDGMENT
Summary judgment is appropriate where there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Pennington v. State
Farm Mut. Automobile Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009). The party bringing the summary
judgment motion has the initial burden of informing the Court of the basis for its motion and
identifying portions of the record that demonstrate the absence of a genuine dispute over material
facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The moving party may satisfy this
burden by presenting affirmative evidence that negates an element of the non-moving party’s claim
or by demonstrating an absence of evidence to support the nonmoving party’s case. Id.
In deciding a motion for summary judgment, the Court must review all the evidence, facts
and inferences in the light most favorable to the nonmoving party. Van Gorder v. Grand Trunk
Western Railroad, Inc., 509 F.3d 265, 268 (6th Cir. 2007). The Court does not, however, weigh the
evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court determines whether sufficient evidence
has been presented to make the issue of fact a proper jury question. Id. The mere existence of a
scintilla of evidence in support of the nonmoving party’s position will be insufficient to survive
summary judgment; rather, there must be evidence on which the jury could reasonably find for the
nonmoving party. Rodgers, 344 F.3d at 595.
TITLE VI
Title VI provides: “No 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.

3

§ 2000d. Claims of deliberate indifference to student-on-student harassment or to a hostile
environment are actionable under Title VI. Maislin v. Tennessee State University, 665 F.Supp.2d
922, 930 (M.D. Tenn. 2009).
In analyzing Title VI deliberate indifference claims, courts have adapted the test initially laid
out by the Supreme Court in Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999). To sustain
a student-on-student harassment claim against a school, a plaintiff must demonstrate: (1) the
harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the
plaintiff of access to the educational opportunities or benefits provided by the school; (2) the
defendant had actual knowledge of the harassment; and (3) the defendant was deliberately
indifferent to the harassment. Maislin, 665 F.Supp.2d at 931. A plaintiff may demonstrate a
defendant’s deliberate indifference to discrimination only where the defendant’s response to the
harassment or lack thereof is clearly unreasonable in light of the known circumstances. Id.; see also
Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253, 258 (6th Cir. 2000).
A finding of deliberate indifference depends on the adequacy of the school district’s response
to the harassment. Zeno v. Pine Plains Central Sch. Dist., 702 F.3d 655, 666 (2d Cir. 2012). A
school district will be liable for third-party conduct only if it exercises substantial control over both
the harasser and the context in which the known harassment occurs. Id. at 665.
The Court finds that there are genuine issues of material fact as to whether Defendant was
deliberately indifferent to the harassment and bullying of NM. It is undisputed that Defendant had
actual knowledge of the harassment, and a reasonable jury could find that the harassment was so
severe, pervasive and objectively offensive that it could be said to deprive NM of access to the
educational opportunities or benefits provided by the school. Defendant argues that its only duty

4

was with regard to bullying which occurred at school, but there are disputed facts as to what
activities, texts, postings, comments and bullying occurred on school grounds and during school
hours or school activities. There are disputed facts with regard to the school’s relationship with law
enforcement, if any, during the relevant time and concerning the alleged bullying. In other words,
the nexus of this harassment to the school is disputed.
For example, several students have testified that they received text messages from a person
posing as NM while on school property and during school hours. NM himself testified that he
received a harassing text message during school hours. Plaintiffs claim that the racist and sexually
offensive texts exclusively targeted GMS students and clearly had a nexus to the school. See, e.g.,
Docket No. 49, ¶¶ 7, 38 and 52.
Whether Defendant’s response to the harassment, or lack thereof, was clearly unreasonable
in light of the known circumstances involves disputed facts as well. For example, there is a dispute
as to whether there were sufficient investigations by school officials into the alleged bullying and
disputed facts as to whether the bullying occurred under circumstances giving rise to additional
duties for Defendant. Docket No. 49, ¶¶ 38-45, 77; Docket No. 53, ¶ 47, 51-52, 57, 59 and 64.
Recognizing that the Court is not to second-guess a school’s disciplinary decisions (Vance, 231 F.3d
at 260), the Court nonetheless finds that a reasonable jury could conclude that Defendant’s response
to this known and continuing harassment was unreasonable.
The factual disputes regarding what happened, where and when are disputed and cannot be
determined on a Motion for Summary Judgment. Accordingly, Defendant’s Motion for Summary
Judgment on the Title VI claim is DENIED.

5

STATE LAW CLAIMS
Plaintiffs have stated that, for purposes of this Motion and all further proceedings in this
action, they do not oppose this Court declining to exercise supplemental jurisdiction over their state
law claims. Accordingly, Plaintiffs’ state law claims are DISMISSED without prejudice.
IT IS SO ORDERED.

___________________________________
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE

6