Fennell et al v. Marion Independent School District et al

Filing 48

ORDER GRANTING 37 Motion for Summary Judgment. Signed by Judge David A. Ezra. (rf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
KYANA FENNELL and LAWANDA
FENNELL-KINNEY, as next friend of
KYRIANNA ADAMS FENNELL and
KAVIN JOHNSON,

§
§
§
§
§
Plaintiffs,
§
§
vs.
§
§
MARION INDEPENDENT SCHOOL §
DISTRICT, GLENN DAVIS,
§
Individually, and CYNTHIA
§
MANLEY, Individually,
§
Defendants.

No. SA:12-CV-941-DAE

§
§

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
On June 24, 2014, the Court heard argument on Defendants’ Motion
for Summary Judgment (the “Motion”) (Dkt. # 37). R. Chris Pittard, Esq.,
appeared on behalf of Plaintiffs. Donald Wood, Esq., and Stacy Castillo, Esq.,
represented Defendants. After careful consideration of the arguments presented at
the hearing and the supporting and opposing memoranda, the Court GRANTS
Defendants’ Motion.

1 

BACKGROUND
Plaintiffs Kyana Fennell and Lawanda Fennell-Kinney, acting as next
friend of Kyrianna Fennell (“Kyra”) and Kavin Johnson (collectively “Plaintiffs”)
filed the instant lawsuit on October 4, 2012, claiming Defendants Marion
Independent School District (“Marion” or “Marion ISD”); Glenn Davis,
individually and in his official capacity; Ashley Smith, individually and in her
official capacity; and Cynthia Manley (“Coach Manley,” or “Manley”),
individually and in her official capacity, discriminated against Plaintiffs under Title
VI and violated the Civil Rights Act, 42 U.S.C. § 1983. (Dkt. # 1.)
On January 28, 2013, the Court dismissed with prejudice the claims
against Glenn Davis, Cynthia Manley, and Ashley Smith in their official capacities
after Defendants moved to dismiss the claims in the Amended Complaint. (Dkt.
# 13 at 2.) The Court granted Plaintiffs leave to file a Second Amended Complaint
(“SAC”). (Id.)
Plaintiffs filed the SAC on March 14, 2013. (“SAC,” Dkt. # 15.) The
SAC alleges violations of Title VI and the Civil Rights Act, 42 U.S.C. § 1983,
against the same defendants, with the individuals sued only in their individual
capacities. (Id.)

2 

In response, Defendants filed a Second Motion to Dismiss. (Dkt.
# 18.) The Court granted that motion in part and denied it in part. (Dkt. # 29.)
The Court ordered that all claims against Ashley Smith be dismissed. (Id.)
At present, Plaintiffs’ pending claims are that (1) Marion ISD violated
Title VI of the Civil Rights Act by acting in a manner that resulted in a racially
hostile environment; (2) Defendant Glenn Davis, in his individual capacity,
violated Kyana right to equal protection; (3) Defendant Cynthia Manley, in her
individual capacity, violated Kyra’s right to equal protection; and (4) that Marion
ISD violated the equal protection clause. (Dkt. ## 15, 29.)
Plaintiffs’ causes of action stem from a series of events that allegedly
took place while Kyra, Kyana, and Kavin were enrolled in the Marion Independent
School District. (SAC ¶¶ 11, 13.) At the time the Complaint was filed, Kyana was
18, Kyra was 15, and Kavin was 13; each of them had attended Marion ISD from
first grade until the end of the 2011–2012 school year. (Id. ¶ 11.) Plaintiffs state
that each of them experienced the following events which precipitated their
withdrawal from Marion ISD. (Id.)
I.

Kyana Fennell
Kyana Fennell states that she experienced the following instances of

harassment at Marion:

3 

(1) While in kindergarten, she was called a “nigger” on a school bus by a white
boy in her class. (Dkt. # 41-5 18:12–19.) Plaintiffs state that, in response, Kyana
punched the boy, and the school disciplined her, but did not punish the little boy.
(Id. 20:18-19, 21:2–4.) Kyana reported that she did not have any further problems
with him. (Id.)
(2) Students in Kyana’s middle school class used the word “nigger,” outside of the
context of their discussion of Huckleberry Finn, but not directed at Kyana. (Id.
21:14–18.) Kyana reported this to the teacher, who spoke with the class about it.
(Id. 21:14–22:1.) She could not remember whether the word was used more than
that one time. (Id. 29:6–10.)
(3) Kyana was “admonished by the white athletic director, Coach Glenn Davis, for
her ‘ethnic’ hairstyles” when her hair was in microbraids. (Id. 38:11–19.)
Plaintiffs state that white students were permitted to wear their hair in non-natural
colors without being admonished. (Id.)
(4) In her sophomore year, a white male classmate called Kyana a “stupid nigger.”
(SAC ¶ 15; dkt. # 41-5 30:2–4.) Kyana stated that she reported this incident to
school officials, but the school did not discipline the student. (Dkt. # 41-5 31:16–
19.)
(5) On February 6, 2012, Ms. Fennell-Kinney found a noose placed beside Kyana’s
car along with a note that read, “Die fuckin ‘nigger sisters’ . . . Bitches!!! You can
4 

never bring our families down . . . Whites will always rule this town and this
school!!!! Damn spooks!!!! So go ahead and file your stupid damn complaints and
grievances . . . . . NIGGERS . . . . . and that ‘Nigger lover’ you have a baby
with . . . .” (Id. ¶ 19.) The incident was reported to the Marion ISD police and the
FBI as a hate crime. (Id.) Ms. Fennell-Kinney testified that when she met with
Mr. Hernandez, a school administrator, he stated that although the campus police
officer, Police Officer Haverstock, was not on campus at the time, he would return
the next morning and they would begin an investigation. (Dkt. # 41-2 62:12–19.)
Additionally, Hernandez stated he would immediately begin reviewing the campus
surveillance tape to see whether any information could be gleaned from it. (Id.
62:18–19.) The alleged perpetrator was never found, in part because Kyana had
the Marion police department stop its investigation of the incident.1 (Id. 83:5–14.)
Kyana stated that she didn’t feel she could trust the police department and no
longer wanted to deal with the “backlash.” (Id.) Kyana stated, “I was getting
depressed, I was having horrible anxiety, wasn’t eating, I wasn’t sleeping.” (Id.)
(6) On April 19, 2012, Kyana engaged in a verbal confrontation with two of Kyra’s
teammates at an off-campus softball field. (Id. ¶ 24.) Plaintiffs state that

1

Officer Haverstock averred that the Federal Bureau of Investigation investigated
the alleged incident, but did not reach any conclusions. To the best of his
knowledge, the case remains open and unsolved. (Dkt. # 37-7, Ex. K ¶ 9.)
5 

Defendant Manley then encouraged the two white students to file criminal charges
against Kyana.2 (Id.)
II.

Kyra Fennell
Kyra Fennell asserts that the following events occurred:

(1) In 2008, she received a text message from a white classmate, including an
animation of the Ku Klux Klan swinging a noose. (Dkt. # 41 ¶ 20.) Kyra
physically confronted the classmate, and it resulted in each of them being
suspended for three days. (Dkt. # 41-3 19:9–10, 19:17–22, 24:6–11, 24:14–16.)
(2) She was subjected to racial slurs and comments during the 2011–2012 school
year. (SAC ¶ 13.) Plaintiffs state these were reported to school officials, but no
action was taken against the white students. (Id.)
(3) During her freshman year, Kyra was left behind on the way to the Luling
softball game, the district championship. (Dkt. # 41-3 25:25–26:1.) She states that
she had been starting short-stop for the team all season. (Id. 26:4–7.) On the day
of the Luling game, Kyra had sought and received permission from her mother to
sign out before lunch that day. (Id. 26:12–15.) Coach Manley had, as always,
provided a note to the students stating the bus would be leaving at 3:05 p.m. for the
game. (Id. 58:12–20.) Kyra did not return to school until approximately 2:55

2

In Manley’s deposition, she testified that she did not encourage the students to
file criminal charges, but only stated that was an option for them if they felt
threatened or unsafe. (Dkt. # 41-8 78:15–25.)
6 

p.m., when another parent drove her back. On the way in, Kyra states she saw the
bus for the softball team leaving, and claims she tried to waive it down. (Id.
40:20–23.) Typically, for away games, the team would load the bus during the last
period of the day, the athletics period. (See id. 40:1–17.) Kyra had missed
athletics period, and Defendant Manley had loaded the bus and departed without
her. (Id.) Kyra states that when she saw the bus leaving, the mother who was
driving her began “waiving her hands and honking her horn.” (Id. 41:6–12.) The
bus did not stop. The mother then drove Kyra to the softball field.
Kyra testified that she had not previously had a teammate who had
missed the bus. (Id. 47:20–22.) Kyra stated that once she arrived at the field, she
went to speak to Coach Manley. (Id. 47:23–48:3.) Manley told her she would not
be playing because she missed her athletics period. (Id. 48:16–17.) However,
Kyra stated that Manley later told her that she was going to get to play, but she just
would not be starting. (Id. 50:8–12.) Prior to this, Kyra had called her mother who
then showed up at the field. (Id. 53:13–17; 56:15–25.) Kyra’s mother stated she
was going to take her home, and Kyra testified that Manley told Kyra and her
mother that if Kyra left the game, she would be suspended or benched the
following game, which she was. (Id.)
(4) On the day of the Luling game, a team photo was taken, without Kyra, in which
one of the girls was in shadow. (Id. 68:13–69:5.) Plaintiffs state that one of the
7 

white girls asked, “Who’s the black girl?” and another replied, “Oh, that’s Kyra,
we cropped her in to [sic] the picture since she was on her lunch date and missed
the photo.” (Id.) Kyra stated in her deposition that these racist comments were
posted on the internet, but that she did not report it to anybody at the school. (Dkt.
# 41-3 68:13–69:9.)
(5) On April 17, 2012, Kyra received a text message from a white student stating
that some of her white teammates had been making disparaging comments about
her sister, Kyana, and her niece. (Id. 69:15–25.)
(6) Kyra was taunted by three of her white classmates over several days. (SAC
¶ 25.) Kyra reported these incidents to a counselor at the school, Mr. Hernandez,
but no action was taken. (Id.) Plaintiffs state that these same girls harassed Kyra
on Twitter and Facebook, referring to her as a “self-centered bitch” and a “bitch.”
(Id.) Plaintiffs reported these comments to Mr. Hernandez, but in response, he
claimed these comments were “irrelevant” because they occurred outside of
school, and Kyra states that “[h]e said that we need to stay off the Internet, that it’s
useless and that he couldn’t do anything about it because it wasn’t done at school.
(Dkt. # 41-3 94:7–9.) Mr. Hernandez then “cautioned Kyra about her Facebook
postings” regarding these girls. (Id.)
III.

Kavin Johnson
Kavin Johnson asserts that she experienced the following events:
8 

(1) In February 2011, when Kavin was in sixth grade, a student called her “Nigger”
in the hallway. (Dkt. # 41-4 17:18–23; 83:19–20.) Kavin testified that she had
been in a fight with that student approximately a week prior—other students had
surrounded Kavin and the student in question “swung at [her] first and then [they]
ended up fighting.” (Id. 18:7–23, 21:5–7, 84:12–13.) As a result, the principal at
the time, Mr. Wendell, suspended each girl for three days. (Id. 20:21–24.) Kavin
was unsure whether the student was punished for her use of the term “nigger.” (Id.
23:18–20.) Plaintiffs contend that the principal did not investigate the incident
until after the suspension, and when the principal concluded that Kavin had only
been defending herself, no other action was taken against the other students. (SAC
¶ 14.)
(2) During the 2011–2012 school year, Kavin was called, “blackie,” “black girl,”
and “nigger” by multiple white classmates. (Id. ¶ 15.)
(3) In seventh grade, a classmate told a “black joke,” which Kavin reported to a
teacher and the principal. (Id. ¶ 15.) The teacher responded that the student did
not mean it that way. (Dkt. # 41-4 24:6–14, 24:22–24.) When Kavin reported this
incident to the principal, he called the student’s mother, but Kavin did not know if
the student received any form of discipline. (Id. 27:16–21, 28:3–5.)
(4) During the 2011–2012 school year, Kavin tried out for the cheerleading squad.
(Id. 60:12–21.) Students filmed Kavin’s tryouts, and they made the video available
9 

on the internet naming it “Little boy tries out for cheerleading.” (Id.) White
students commented that “black girls weren’t pretty enough to be cheerleaders”
and that Kavin “looked like a boy.” (Id.) Although Kavin did make the squad,
Plaintiffs contend that she was excluded from cheerleader activities sponsored by
her white classmates. (Id. 98:16–25.) Kavin’s mother spoke to the cheer sponsors
about the incident. (Id. 60:1–2.)
(5) At one point, during her seventh grade year, a student spit on Kavin. (Id.
28:17–22.) Kavin stated that she had no history with the student; she stated, “[i]t
was in the cafeteria, and I was walking with my tray, and I just felt spit hit my
face.” (Id. 29:12–23.) Kavin knew that the principal called the student to his
office, and she subsequently had no further problems with that student. (Id. 32:15–
16.)
IV.

Other Racial Harassment
Plaintiffs also state that the racial harassment was not limited to

Kyana, Kyra, and Kavin. (SAC ¶ 20.) According to Plaintiffs, “Doug Giles, a
ward of Lawanda Fennell-Kinney was called ‘Nigger’ by his white classmates at
the high school and [on] January 6, 2012, he wrote a statement that someone hung
a noose by his locker.” (Id. ¶ 20.) Plaintiffs state that this incident was reported to
the athletic director, Defendant Davis, whose only response was to speak to the
athletic team. (Id.)
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V.

Plaintiffs’ Response
While Kyana, Kyra, and Kavin were at Marion ISD, Plaintiffs filed a

number of grievances.3 (Dkt. # 37-5 31:1–32:20.) After Plaintiffs filed a Level III
grievance and asked for certain remedies that the District refused to issue Plaintiffs
removed Kyana, Kyra, and Kavin from Marion ISD. (Id. ¶ 26.) According to the
SAC, “Ms. Fennell-Kinney cited several violations of District Policy including its
‘zero tolerance’ of harassment policy. Ms. Fennell-Kinney requested several
different remedies including updating the District policy to address the situation
presented by the Plaintiffs [and] additional training for teachers and administrators
concerning racially-hostile environments and harassment.” (Id.)
LEGAL STANDARD
A court must grant summary judgment when the evidence
demonstrates “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). The
Court evaluates the proffered evidence in the light most favorable to the
non-moving party. Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir.
1994). A Court “examines the pleadings, affidavits, and other evidence introduced
in the motion, resolves any factual doubts in favor of the non-movant, and

3

Marion has a three-level grievance procedure with an option to appeal a
grievance decision to a higher level. (Dkt. # 41-8 at 70–74.)
11 

determines whether a triable issue of fact exists.” Leghart v. Hauk, 25 F. Supp. 2d
748, 751 (W.D. Tex. 1998).
In seeking summary judgment, the moving party bears the initial
burden of demonstrating the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its burden,
the burden then shifts to the non-moving party “to go beyond the pleadings and by
[his or her] own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue for
trial.” Id. at 324 (internal quotation marks omitted). The non-moving party “must,
either by opposing evidentiary documents or by referring to evidentiary documents
already in the record, set out specific facts showing a genuine issue as to a material
fact exists.” Leghart, 25 F. Supp. 2d at 751. “[Non-movants] are required to
identify the specific evidence in the record and to articulate the precise manner in
which that evidence supports their claim.” Id. Further, “Rule 56 does not require
the district court to sift through the record in search of evidence to support a [nonmovant’s] opposition to summary judgment.” Id.
If a party “fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial,” the Court must grant summary judgment against that
party. Celotex, 477 U.S. at 322.
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DISCUSSION
I.

42 U.S.C. § 1983 Claims
Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, or any State or Territory, or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. Section 1983 is not, itself, a source of substantive rights;
however, it provides a vehicle by which a plaintiff can enforce federal rights
conferred elsewhere. Albright v. Oliver, 510 U.S. 266, 271 (1994).
Plaintiffs bring claims pursuant to § 1983 violations of their right to
equal protection of the laws. “To prove a prima facie case of discrimination under
the equal protection clause, a plaintiff must show (1) that he is a member of a
protected class, (2) that he is otherwise similarly situated to members of the
unprotected class, and (3) that he was treated differently from members of the
unprotected class.” Jackson v. Katy Indep. Sch. Dist., 951 F. Supp. 1293, 1302
(S.D. Tex. 1996) (citing McNabola v. Chicago Transit Auth., 10 F.3d 501, 513 (7th
Cir. 1993)). A plaintiff must also demonstrate “that Defendants acted with
discriminatory intent.” Id.; Gomiller v. Dees, No. 4:06CV33-D-B, 2007 WL
1031359, at *3 (N.D. Miss. Mar. 29, 2007) (“To state a claim for racial
13 

discrimination under the Equal Protection clause, the plaintiff ‘must allege and
prove that he received treatment different from that received by similarly [situated]
individuals and that the unequal treatment stemmed from a discriminatory intent.’”
Id. at *5 (quoting Priester v. Lowndes Cnty., 354 F.3d 414, 424 (5th Cir. 2004))).
“To state a claim under the Equal Protection Clause, a § 1983 Plaintiff must allege
that a state actor intentionally discriminated against the plaintiff because of
membership in a protected class.” Williams v. Bramer, 180 F.3d 699, 701, 705
(5th Cir. 1999) (finding that while an officer’s use of a “racial epithet is compelling
evidence of racial animus, . . . the plaintiff must still show that the officer engaged
in specific conduct that denied [the plaintiff] equal protection of the laws.”). Or,
stated another way, “[t]o state a claim of racial discrimination under the Equal
Protection Clause and section 1983, the plaintiff must allege and prove that [she]
received treatment different from that received by similarly situated individuals
and that the unequal treatment stemmed from a discriminatory intent.” Priester,
354 F.3d at 424 (internal quotation marks omitted).
In the Fifth Circuit, “[a] discriminatory purpose implies that the
decision maker singled out a particular group for disparate treatment and selected
his course of action at least in part for the purpose of causing its adverse effect on
an identifiable group.” Priester, 354 F.3d at 424 (internal citations and quotation
marks omitted).
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A.

Claims Against Glenn Davis
Plaintiffs claim that Davis violated Kyana’s right to equal protection

under the laws and is liable under § 1983 because of (1) his alleged
admonishments to Kyana regarding her “ethnic” hairstyle (SAC ¶ 33) and because
he “conducted a biased investigation into the April 19, 2012 incident . . . where he
found that [Kyana] had bullied two white classmates.” (Dkt. # 41 at 9.)
1.

Comments Regarding Kyana’s Hair

First, the summary judgment evidence presents an issue of fact as to
what Coach Davis said to Kyana regarding her hair. Kyana states that she
remembers Davis stating “I know how much you people spend on your ethnic hair
styles.” (Dkt. # 37-2 38:20–23.) In contrast, Davis denies this and stated he made
no reference to her hair style being ethnic. (Dkt. # 37-6 48:12–17.) According to
Davis, he commented on Kyana’s hairstyle because it was dyed an unnatural color,
in violation of the school’s athletic policy. (Id. 47:12–48:24.) Similarly, Davis
testified that this policy was applied to students involved in the athletic program
during the year, regardless of race. (See id. 58:12–59:16.) Although initially,
Plaintiffs alleged that Davis referenced Kyana’s hair because it was styled in
microbraids (SAC ¶ 16), neither party disputes that the picture attached in Exhibit
A-1 to Defendant’s Motion for Summary Judgment (Dkt. # 37-2 at 71) is an
accurate representation of Kyana’s hairstyle when Davis’ comments allegedly
15 

occurred. (Dkt. # 37-2 41:6–12.) Therefore, the photograph demonstrates that
Kyana’s hair was not in microbraids at the time, but merely dyed an unnatural
color, in violation of the athletic policy. Therefore, even if Kyana’s statement
were true, it does not establish that Davis treated Kyana differently than her peers,
even if he used the term “ethnic” because Davis also stated that any student,
regardless of race, would not be permitted to maintain their hair an unnatural color.
(See id. 58:12–59:16.)
In Williams, the Fifth Circuit explicitly stated that “an officer’s use of
a racial epithet, without harassment or some other conduct that deprives the victim
of established rights, does not amount to an equal protection violation.” 180 F.3d
at 706. The court concluded, stating that because the officer “made only one,
isolated comment and he in no other way impinged on [the plaintiff’s] rights[,]
[w]e cannot conclude that [the officer’s] alleged conduct . . . rises to the level of
harassment.” Id.
Therefore, as in Williams, Plaintiffs cannot establish an equal protection
violation against Davis, and the Court GRANTS summary judgment on this claim.
2.

Davis’s Investigation

Plaintiffs also contend that Defendant Davis conducted a biased
investigation into the incident in which two white students ultimately filed criminal
charges against Kyana. (Dkt. # 41 at 9.) Davis wrote an incident report based on
16 

information from Defendant Manley. (Id.) Plaintiffs argue that because he did not
interview Kyana, it demonstrates that he acted based on racial bias against her.
However, in his deposition, Davis testified he could not recall speaking with any of
the students involved. (Dkt. # 41-10 77:10–18.) Based on Davis’ testimony, and
Plaintiffs’ lack of evidence to the contrary,4 it appears Davis treated Kyana in
exactly the same way he treated the white students: Davis did not speak to any of
them. And while the Court may not agree that this is the best way to investigate an
incident, there is no material issue of fact as to whether Kyana was treated
differently because of her race. Therefore, the Court GRANTS summary
judgment to Defendants on this claim.
B.

Claims Against Cynthia Manley
Plaintiffs claim that Manley violated Kyra’s and Kyana’s rights to

equal protection and is liable under § 1983 because (1) Manley left Kyra behind on
the way to the Luling softball game; (2) Manley punished Kyra for signing out for
lunch on a game day by refusing to let her play for two softball games when she
had never done the same to a white student (Dkt. # 41-1 ¶¶10–11); and (3) Manley

4

Plaintiffs have presented only their belief and conjecture as to what happened.
However, suppositions are not enough to create a genuine issue of material fact.
Lechuga v. S. Pac. Transp. Co., 949 F.2d 790, 798 (5th Cir. 1992) (holding that
“testimony based on conjecture alone is insufficient to raise an issue to defeat
summary judgment”).
17 

encouraged two white students to file charges against Kyana for the verbal
confrontation that Manley did not witness. (SAC ¶ 33.)
1.

The Luling Game and Consequences for Kyra

The Court finds that Coach Manley acted in accordance with the
published athletic policy and with her unwritten policy of which students were
aware. The Court finds that although there may be an issue of fact as to whether
Coach Manley saw Kyra as the bus was leaving, it is not material. The totality of
the evidence clearly demonstrates that Coach Manley did not act in a manner based
on racial bias during these events.
First, there is no dispute that Kyra had been starting on the softball
team all season. Second, Manley always took roll call during athletics period; she
stated that “if [a student was] absent at roll call, that means they [were] absent
from class. They’re not in class, so there’s no reason to wait for them. They’re not
coming. They’re absent. So we leave.” (Dkt. # 37-6 42:21–43:4.) Additionally,
she testified that if any player missed the bus, that player would be penalized by
not getting to start in that game. (Id. 45:1–4.) Manley testified that when other
students had missed the bus, including a starting catcher, Manley refused to let
those players start. (Id. 45:19–22.)
Manley admits that the bus left early the day Kyra was absent. (Id.
48:20–22.) However, the evidence demonstrates that this was in accord with
18 

Manley’s usual practice, and Plaintiffs have put forth no evidence, other than their
conjecture, that there was any racial motivation behind Manley’s actions.
Therefore, the Court GRANTS summary judgment to Defendants on this claim.
2.

The Criminal Charges Against Kyana

The Court finds that there is not sufficient evidence in the record to
support the claim that Coach Manley acted in a manner violating Kyana’s right to
equal protection when she advised the two white students to file charges against
Kyana. Further, there is not sufficient evidence in the record to find that her action
was based on racial bias. Additionally, the Court has already found that Plaintiffs
failed “to state an equal protection claim against Defendant Manley based on the
allegations surrounding the second softball game and the alleged criminal
charges.” (Dkt. # 29 at 27.) No additional facts have been produced to change the
Court’s opinion.
C.

Claims Against Marion ISD
Plaintiffs allege that Marion ISD is liable under § 1983 first because it

sanctioned the custom, practice, policy, or procedures of “(1) allowing teachers,
coaches and administrators to forego their duties and obligations to protect students
from racial harassment; (2) failing to discipline those students whom are found to
have racially harassed other students; (3) failing to adequately supervise teachers,
coaches and administrators in the performance of their duties; (4) allowing
19 

teachers, coaches [and] administrators to target African-American students through
more severe punishments, threats of punishments, and censure in front of white
classmates; and (5) failing to impose proper and sufficient policies and/or
procedures as to the racial harassment and bullying of students in general and
African- American students in particular.” (SAC ¶ 35.)
Second, Plaintiffs argue that Marion ISD is also liable under § 1983
for failing to train and/or supervise its employees and/or acquiescing to its
employees’ unconstitutional behavior. (Id. ¶ 34.)
1.

Custom or Policy

In order to hold a school district liable under § 1983, a plaintiff must
show that (1) an official policymaker (2) adopted an official policy (3) that was the
“moving force” behind the violation of constitutional rights. Piotrowski v. City of
Houston, 237 F.3d 567, 578 (5th Cir. 2001). In Texas, the official policymaker is
the school’s Board of Directors. Meyers v. LA Porte Indep. Sch. Dist., No. Civ. A.
H–05–1087, 2007 WL 7119878, at *2 (S.D. Tex. Apr. 25, 2007). Ms. FennellKinney brought Level III grievances against Defendant Manley, Defendant Davis,
and former Defendant Ashley Smith. (Dkt. # 41-1 33:14–34:17.) The Court must
determine whether the evidence demonstrates a genuine issue of material fact as to
whether there was an official policy of discrimination adopted by the Board.

20 

As a preliminary matter, the Court notes that Marion ISD is subject to
the official written policies entitled (1) Student Welfare Freedom from
Discrimination, Harassment, and Retaliation and (2) Student Welfare Freedom
from Bullying. (Dkt. # 37-8 at 7-32.) These policies prohibit bullying and
discrimination and harassment based on race. (Id.)
Plaintiffs claim that despite this, Marion has an unofficial policy of
permitting harassment and promoting disparate treatment of its students based on
race. The Court notes that the numerous times which Kyra, Kyana, and Kavin
have allegedly endured being called “Nigger” support Plaintiffs’ argument.
Additionally, Plaintiffs contend that the Board’s unofficial policy is evident from
its failure to provide additional training for its teachers after the Level III grievance
was brought to its attention. (Dkt. # 41 at 8.)
However, the Board’s response must be taken in the context of
Marion’s response to the combined Level I and II grievance filed by Plaintiffs and
the measures Marion had already implemented. (Dkt. # 41-8 at 32.) In response to
Plaintiffs’ demands, Marion ISD responded through its superintendent Mario
Sotello, as follows:
1.
Request that there not be a Level I grievance hearing with the
Athletic Director, but instead be heard by me at Level II.
Granted. As you are aware, I agreed to hear your grievance
directly as a combined Level I and Level II grievance.
21 

2)
Want a formal apology written to your daughter, Kayana [sic],
from the administrative team for failing to adhere to confidentiality,
for not maintaining a non-biased opinion in front of our child, for not
allowing our child to feel safe in the school environment and causing
undue stress and emotional harm to the point that she does not even
feel comfortable participating in the sport she loves.
Denied. While I understand your frustration and concerns you
have for your children, in my investigation of all the issues you
raised in your complaint, nothing that was done by any employees
of the District was to a level that I believe warrants a written
apology. I believe that all District employees took appropriate
action in response to the various issues you raised to them and
that you recount in your written grievance. I believe that the
District has responded aggressively and appropriately to deal with
the racially motivated comments and actions that you recount
being done by other students or even persons outside of the
District. I further note that since submission of your grievance,
your daughter has returned to participating on the girls’
basketball team. I believe that the Athletic Director and all the
other coaches have responded to all the racially motivated issues
you raised with appropriate responses. I believe they have taken
steps to educate the students specifically at issue, and the Marion
student body as a whole, as to racial diversity and respect. I
believe that District personnel have kept your daughter’s student
information confidential, but that as District employees, there are
times that student information is shared between District
employees who have an educational need to know of the
information. We will continue to respond to any and all
inappropriate actions by students which violate the Marion ISD
Student Code of Conduct.
3. Want a policy that covers incidents that involve district employees
or their families while at auxiliary school related functions.
Granted in part and Denied in part. Marion ISD already has
policies in place as well as an employee handbook that apply to
District employees who are at District functions or events . . . .We
will review those policies and the handbook with administrations
to make sure we do apply those provisions when appropriate. As
22 

to your request that we have some control over family members of
District employees, we do not have such authority. . . .
4. Want something permanently placed reflecting the incident in the
teacher/coaches [sic] employee file.
Granted. In review of the situation, Coach Smith acted contrary
to the expectations of the District and we have handled that
matter as a personnel matter with Ms. Smith.
5. Want something in writing stating how future incidents from this
particular coach will be handled to prevent other students from feeling
the embarrassment and humiliation that has been caused.
Denied. The District does not have polices or procedures
specifically tailored to individual employees as we have policies
and procedures which apply to all employees. . . . In light of these
allegations, we will review those policies with our employees in
future staff meetings as well.
6. Want assurances that in the future, when issues like this arise,
parents will be fully notified as course of actions are occurring and not
as hindsight.
Granted. I agree that it would have been better to notify you that
Coach Smith was returning to her assistant coaching duties
following the game and after we had a chance as a District to
review the entire situation. . . .
7. Want assurances that there will be no further retaliation against any
of the children who live with the family.
Granted. Marion ISD, as provided in District Policies FB and
FFH, does not and will not tolerate any discrimination against a
student of the District based on the student’s race, nor will the
District tolerate any form of retaliation for filing this grievance
pursuant to these same policies. Should you feel that your
students are subject to future harassment based on their race, you
should report that pursuant to these policies.
23 

8. Although there is an item 8, there is no remedy sought under it.
In addition to these first remedies sought, you [Plaintiffs] provided a
second list of remedies sought during the grievance conference. The
following is my response to these additional remedies sought.
1. Entire Marion ISD Staff to receive training on culture sensitivity.
Granted. The District annually provides training to District staff
regarding illegal discrimination and general training on
sensitivity towards all students and follow [sic] staff members
alike. Unfortunately situations arise where we all need a
reminder of these lessons and we will revisit these issues in future
staff meetings.
2. A school mentor available, to provide consistency, that my
children can go to when they have a problem, without calling us, as
parents, at work.
Granted. The District has counselors and your children, as are all
children, are invited to speak with them about any problems they
are encountering. As your students are on different campuses,
they would have different counselors differently [sic] as well. If
you wish to have a specific counselor set up for your students to
go to, we can do that. If you wish to have someone else serve as
this ‘mentor’ for your students, the District is ready to discuss
such a situation with you to come to a mutually agreeable
solution.
3. Formal apologies from the Marion faculty involved in each of the
above mentioned incidents which have not been rectified to all of the
above named children involved for their inappropriate, unethical and
humiliating comments.
Denied. As I have already stated, nothing in my investigation has
shown that any District employee has acted in such a manner that
an apology needs to be directed from a supervisor to them.
Additionally, you have raised issues from years past which while
not only are they untimely, but there is simply no way that I can
look into those issues at this point in time. While I am denying
24 

this remedy, please recognize that I do hear your frustrations and
we will endeavor as a District to try and achieve better results
with your concerns in the future.
4. Disciplinary action against Coach Ashley Smith and Athletic
Director, Glenn Davis should be taken as deemed appropriate by the
District.
Granted in part and Denied in part. As previously stated in this
response, I have reviewed this incident and have determined that
Coach Davis did not act inappropriately in any of the situations
including [sic] in your grievance. As you are aware, Coach Smith
was removed from coaching a game and we as a District have
provided appropriate disciplinary actions regarding her conduct.
5. A verbal group apology by all the Coaching staff to all students in
the athletics department for issues perceived as unprofessional
behavior and the language of the athletic staff.
Denied. This remedy is vastly beyond the scope of anything even
included in your grievance as you seek an apology from persons
who may have never even had an interaction with any of your
students. Additionally, I am denying this remedy due to the fact
that I do not believe an apology is warranted based on the
circumstances of the complaints.
6. The District have an annual assembly with students of ‘at least’ the
middle school and high school grade level on their respective
campuses to educate on diversity, bullying and hate crimes.
Granted in part. The District provides student instruction each
year over these topics and has done so this year on Tuesday,
October 11, 2011 and Thursday, October 13, 2011. Guadalupe
County Probation Officer Kelley Tomlin was at our Middle
School campus to provide a Bullying Program to our students.
The students were divided into small groups and ran four 90
minute sessions each day to allow for a presentation format as
well as a question and answer session.

25 

On February 28, 2012, a presentation is slated by Motivational
Productions. Scheduled presentations included the following:
9:30 a.m.—Fearless, for Middle School; and 10:45—Taking
Control for the High School.
7. The District will implement policy into place to give clear
direction to immediately deal with issues of racial slurs and hate
crimes and assure they are immediately brought to the attention of the
principal.
Granted in part. District Policies FB and FFH both relate to how
the District will respond to discriminatory actions by students or
others. There are reporting mechanisms in place in the policies
that the District utilizes.
8. Accurate notation of all of the above noted incidents should be
placed in the employee files of the faculty members involved as
deemed to be appropriate by the District.
Granted. We have reviewed the various issues raised by your
complaint and where disciplinary action was appropriate, that
action was taken.
9. The District reevaluate the structure of the chain of command
where the Athletic Department is concerned and implement all the
Athletic Department staff be under the direction of the campus
Principal.
Granted in part and Denied in part. All coaches report to both
the campus principal on which they teach and report to the
Athletic Director for athletics. Both supervisors have the
responsibility to handle any employment issues which arise. If an
issue needs to be reviewed beyond that level, both the campus
administrators and the Athletic Director report to the
Superintendent’s office. This structure is appropriate and I do
not believe it needs to be changed as it would not cause any
‘swifter or more precise’ actions.

26 

10. The District will explore options to enhance current surveillance
systems if funding is not available for new systems to ensure student
safety while on campus and in the parking areas.
Granted. The District always reviews student safety issues and
concerns and will continue to do so. Providing additional cameras
will be one possible option that I will include in the District files to
consider during the next budget cycle and safety audit and review.
11. Reflection and consideration of diversity in the Marion ISD
handbook and Athletic Policy in reference to hair color and style for
minority groups, so their cultural sensitivity is also included with the
policy.
Granted. The District reviews its policies and handbooks every
summer before the start of the next year. Included in the yearly
review is the student handbook and the district’s dress code
requirements. If you wish to share your views with the Board
more directly, you should be sure to attend the board meetings
during the summer when the board adopts these rules and share
your thoughts at that time as well.
12. A policy put into place in reference to employees and their
family’s behavior while at all auxiliary school functions where the
ISD faculty and students are representing Marion ISD.
Granted in part and Denied in part. As stated above, the
District’s policies and employee handbook already apply to
auxiliary school functions and when employees are working for
the District. Our policies, however, cannot control family
members of District employees.
13. Marion ISD to hire African American teachers, counsel, and
support staff.
Granted. Marion ISD, in compliance with both federal and state
laws, is an equal opportunity employer and as such does not
consider the race of any job applicant when determining if the
applicant is the best qualified candidate for the job. If an African
27 

American applies for and is the most qualified candidate for any
job within the District, they will be hired.
14. No reprisal action be taken or retaliation be taken against any of
my children in the Marion ISD.
Granted. Marion ISD, as provided in District Policies FB and
FFH does not and will not tolerate any discrimination against a
student of the district based on the student’s race, nor will the
District tolerate any form or retaliation for filing this grievance
pursuant to these same policies. Should you feel that your
students are subject to future harassment based on their race, you
should report that pursuant to these policies.
(Dkt. # 41-8 at 32–37.)
Additionally, in his deposition Sotelo stated that aside from the yearly
sensitivity training Marion ISD staff received, after the Kinney’s request for
additional sensitivity training, Marion brought in the DOJ to implement more
training. (Dkt. # 41-7 66:24–67:3.)
The fact that the issues of racial harassment continued does not prove
that the Board had a custom or policy of permitting harassment or promoting
discrimination. It is clear from the response to Plaintiffs’ grievance that Marion
was actively attempting to remedy the problems at the school. The fact that the
Board declined to implement additional measures does not imply that they had a
custom or policy of promoting harassment. The alleged incidents here involved
various children; Marion responded to each incident and took steps to prevent
future occurrences. These actions demonstrate that Marion did not, in fact, have a

28 

custom or policy of promoting racial discrimination or harassment. Therefore, the
Court GRANTS Defendants’ Motion on this claim.
2.

Failure to Train or Supervise Marion Teachers

“Failing to adequately supervise, monitor, or train teachers ‘can
ordinarily be considered deliberate indifference only where the failure has caused a
pattern of violations.’” Thomas v. Bd. of Educ. of Brandywine Sch. Dist., 759 F.
Supp. 2d 477, 492 (D. Del. 2010) (quoting Berg v. Cnty. of Allegheny, 219 F.3d
261, 276 (3d Cir. 2000)). Generally, “an isolated incident, however unfortunate,
does not demonstrate evidence of . . .[a] persistent and widespread policy and will
not be considered so pervasive as to be a custom or practice.” Doe v. Sch. Bd. of
Broward Cnty., 604 F.3d 1248, 1263–64 (11th Cir. 2010); see also Christopher v.
Nestlerode, 240 F. App’x 481, 489–90 (3d Cir. 2007) (noting that a single
constitutional violation may provide basis for municipal liability, but only where
need for more training or supervision is “so obvious and the inadequacy so likely
to result in the violation of constitutional rights” does the the municipality’s
inaction amounts to deliberate indifference).
In Jackson v. Katy Independent School District, 951 F. Supp. 1293,
1296 (S.D. Tex. 1996), the plaintiffs alleged that their bi-racial son was frequently
disciplined more severely that his white peers. The Southern District stated that

29 

“[t]he Court cannot and should not become an arbiter of classroom disciplinary
disputes absent clear proof of intentional discrimination . . . .” Id. at 1295.
Here, Plaintiffs allege that Marion’s response to the racial harassment
Kyra, Kyana, and Kavin endured amounted to a failure to train or supervise its
staff, or both. However, the Court finds that Marion took reasonable steps to
remedy the harassment endured by Kyra, Kyana, and Kavin.
When Kyana was called a “nigger” by a fellow kindergartener, she
retaliated by hitting him. Kyana was disciplined, but the other white student was
not. The Court has previously held that a teacher may reasonably choose to
discipline a child of that age for hitting, but not for using a racial epithet likely
beyond that child’s capacity to understand.5 (Dkt. # 13 at 22–23.) Because the
teacher’s decisions were within an acceptable range of appropriate responses, this
incident does not support a theory that Marion failed to train or supervise its
teachers.
When Kyana reported that students in her class had been using the
word “nigger” in her presence, but not directed at her, after reading Huckleberry
Finn, the teacher spoke to the class about it. (Dkt. # 37-2 21:9–22:9.) Kyana

5

As discussed earlier, by this statement, the Court does not mean to suggest a
kindergarten teacher should tolerate or ignore a student using a racial epithet.
However, the Court recognizes that there is a significant difference between a five
year old, who may not fully understand the impact of what they are saying, and an
older student. In the latter case, punishment may well be called for, while in the
former case, less drastic measures may be appropriate.
30 

stated that students did not use the word in class again. (Id. 29:1–10.) Given that
the incident was not repeated, it appears that the teacher’s methods were adequate,
and this incident does not support failure-to-train liability.
In tenth grade, a classmate called Kyana a “stupid nigger.” (Dkt.
# 37-2 29:21–25.) Kyana reported the incident, and the school called the
classmate’s mother. (Id. 31:23–25.) Kyana stated that the student did not call her
that again. (Id. 33:3–6.) Again, it appears the teacher’s actions were sufficient to
stop that harassment, and this incident does not support failure to train liability.
When Kavin was in seventh grade, another student called her
“nigger.” (Dkt. # 37-4 16:11–19.) The incident resulted in a fistfight, and both
Kavin and the other student were suspended for three days. Because both students
received the same punishment, there can be no argument of disparate treatment.
That same year, a student spit in Kavin’s face. (Dkt. # 37-4 28:17–24,
29:14–18.) The principal called the student to his office, and Kavin did not
subsequently have any problems with the student. (Id. 33:7–9.) Because the
responsive action taken by Marion ended the problem with the student, the Court
finds that Marion’s response to this incident does not support liability under a
failure to train theory.
Additionally, Plaintiffs allege that Defendant Davis made comments
regarding the “ethnic” style in which Kyana wore her hair. (Dkt. # 37-2 38:20–
31 

25.) However, as discussed above, Defendant Davis denies making these
statements and was instead commenting on the fact that Kyana’s unnaturallycolored hair was in violation of the Athletic Policy. Additionally, this was a
discrete incident; there is no evidence in the record that he ever repeated these
alleged comments or discriminated against Kyana based on her race.
In each of these instances, Marion ISD’s response was sufficient to
address the problem with the individual student engaging in harassment.
Additionally, although in some of these instances, Plaintiffs were themselves
disciplined, this arose from the fact that the verbal confrontations escalated into
physical confrontations. The evidence shows that Marion’s, and the individual
teachers’, responses were not motivated by racial bias or a discriminatory intent,
and therefore, Plaintiffs have not raised a genuine issue of material fact as to
whether Marion failed to properly train or supervise its teachers. The Court
GRANTS Defendants’ Motion on this claim.
II.

Title VI Claims
In addition to their § 1983 claims, Plaintiffs also allege that Marion

ISD violated Title VI by “failing to address the issue of racial harassment and
hostile environment” that was present in the school. (SAC ¶ 29.)
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
32 

benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.
42 U.S.C. § 2000d.
Title VI only provides a private cause of action for individuals to
enforce the provisions of section 601 which prohibits intentional discrimination
based on race, color, or national origin. Alexander v. Sandoval, 532 U.S. 275, 276,
280–81 (2001). Therefore, discrimination must be intentional to be actionable
under Title VI. In the context of a hostile environment claim, the environment
must have been intentionally created or that it is the result of deliberate
indifference. Bryant v. Indep. Sch. Dist. No. I-38 of Gavin Cnty, OK, 334 F.3d
928, 931 (10th Cir. 2003).
In order to prevail on a claim that a school district violated Title VI, a
plaintiff must show that a racially hostile environment exists, that the school
district had either constructive or actual notice of the problem, and that it did not
take adequate steps to “redress the racially hostile environment.” 59 Fed. Reg. at
11449. “[U]nder Title VI, ‘[i]ntentional discrimination can [be] inferred by the
defendant’s deliberate indifference to differential treatment.’” Watson ex rel.
Watson v. Jones Cnty. Sch. Dist. ex rel. Jones Cnty. Sch. Bd. of Educ., No.
2:07cv100-KS-MTP, 2008 WL 4279602, at *11 (S.D. Miss. Sept. 11, 2008).
Additionally, “deliberate indifference to known acts of [student-on-student]

33 

harassment” can constitute intentional discrimination and violate Title VI. Bryant,
334 F.3d at 934.
First, a racially hostile environment is one in which racial harassment
is so “severe, pervasive or persistent so as to interfere with or limit the ability of an
individual to participate in or benefit from the services, activities or privileges
provided by the recipient.” Watson, 2008 WL 4279602, at *11 (quoting the
Department of Education’s Racial Incidents and Harassment Against Students at
Educational Institutions; Investigative Guidance, 59 Fed. Reg. 11449 (March 10,
1994)) ; see also Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1033
(9th Cir. 1998) (same)6. Further, in order to establish a hostile environment, racial
harassment must rise to the level that it would “interfere with the educational
program of a reasonable person of the same age and race as the victim. Monteiro,
158 F.3d at 1033; see also Hayut v. State Univ. of N.Y., 352 F.3d 733, 750 (2d Cir.
2003). Additionally, the Department of Education clarified that in considering
whether a hostile environment exists, attacks directed at others, besides the
complainant, should be considered as well. 59 Fed. Reg. 11449–50.

6

“The Department of Education is the agency charged by Congress with enforcing
Title VI. As such, its interpretation is entitled to a high degree of deference by the
courts so long as it does not conflict with a clearly expressed congressional intent
and it is reasonable. Monteiro, 158 F.3d at 1033 (citing Chevron v. Natural Res.
Defense Council, 467 U.S. 837, 844–45 (1984)).
34 

To establish a racially hostile environment, a plaintiff must show that
the environment undermined and detracted from his or her educational experience
and the plaintiff was “effectively denied equal access to an institution's resources
and opportunities.” Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 651
(1999). The harassment must further have a “concrete, negative effect” on the
victim's education, which may include dropping grades, becoming homebound or
hospitalized due to harassment, physical violence, or physical exclusion from a
school resource. C.S. v. Couch, 843 F. Supp. 2d 894, 907 (N.D. Ind. 2011). In the
school context, the Court must also remain cognizant of the fact that some degree
of teasing or name calling is unavoidable. Id. at 652.
Second, either constructive notice or actual notice of a racially hostile
environment is sufficient to satisfy the second element of the claim. Id. 11450–51.
“Actual notice may occur . . . when a student or parent makes a complaint about
racially demeaning incidents to the appropriate educational authorities.” Monteiro,
158 F.3d at 1034.
Third, a plaintiff must show that a school’s response to the problem
was inadequate. The Department of Education states that once a school district is
on notice, it “has a legal duty to take reasonable steps to eliminate” the racially
hostile environment. 59 Fed. Reg. 11450. If a school instead acts with deliberate
indifference to the problem, it will be liable under Title VI. Monteiro, 158 F.3d at
35 

1034. This standard maintains that a school district “is liable for its failure to act if
the need for intervention was so obvious, or if inaction was so likely to result in
discrimination, that ‘it can be said to have been deliberately indifferent to the
need.’” Monteiro, 158 F.3d at 1034 (quoting City of Canton, Ohio v. Harris, 489
U.S. 378, 390 (1989)); Watson, 2008 WL 4279602, at *11.
1.

Racially Hostile Environment

In Monteiro, the plaintiffs alleged that “her daughter and others were
subjected to a hostile racial educational environment because they were repeatedly
called ‘nigger’ and other racial slurs by white students.” Monteiro, 158 F.3d at
1032. The plaintiffs also stated that these phrases were “scrawled about the school
in the form of graffiti” and that she and others had complained to the school district
authorities, but no action had been taken. Id. The court concluded that, “[i]t does
not take an educational psychologist to conclude that being referred to by one’s
peers by the most noxious racial epithet in the contemporary American lexicon,
being shamed and humiliated on the basis of one’s race, and having the school
authorities ignore or reject one’s complaints would adversely affect a Black child’s
ability to obtain the same benefit from schooling as her white counterparts.” Id. at
1034.
In Watson, the plaintiff, an African-American student was involved in
an altercation. 2008 WL 4279602, at *1. The plaintiff argued that the school’s
36 

response was “due to intentional racial discrimination and indicative of the
[d]efendants’ systemic discrimination against black students.” Id. The court found
that the school district was not deliberately indifferent to a racially hostile
environment because when it was twice reported to the school that a white student
had used racial epithets, the school suspended the student both times. Id. at * 11.
The court recognized that the plaintiffs had “provided no evidence of such an
incident that was reported yet went unpunished.” Id. The court also relied on the
fact that the administrators at the school “met periodically with students and told
them that if they experienced any racial harassment to notify a teacher or school
administrator so the problem could be addressed.” Id. Additionally, the school
had “instructed the general student population that the use of racial slurs was
unacceptable.” Id. The court relied on these proactive actions as evidence
demonstrating the school was not deliberately indifferent, and dismissed the Title
VI claim. Id.
In Zeno v. Pine Plains Central School District, the plaintiff was
subjected to numerous incidents at his “racially homogenous” high school “where
minorities represented less than five percent of the student population.” 702 F.3d
655, 659–61 (2d Cir. 2012). During his freshman year, the plaintiff was verbally
assaulted and called a “nigger.” Id. at 659. The plaintiff’s mother reported the
incident, but was told that she should avoid burning bridges. Id. Subsequently, the
37 

plaintiff endured numerous racial comments and harassment, including physical
assaults, like a student stripping a necklace from his neck. Id. The plaintiff’s
mother complained again, but no action was taken. Id. The evidence showed that
“[b]eyond disciplining each student involved in the incidents . . . with a warning or
suspension, the [school district] did not implement other remedial measures in
response to the student harassment” of the plaintiff. Id. During the following
years, the verbal and physical assaults became significantly worse, and the
plaintiff’s mother reported them to the district with little response; all the district
did was implement a couple of programs that did not focus on racial bias or
prejudice to which attendance was optional and organized a mediation between the
plaintiff’s mother and his harassers’ parents of which it did not inform the
plaintiff’s mother. Id. at 660, 670. The Second Circuit found that a school would
be liable for student-on-student harassment when it exercises substantial control
over the circumstances of the harassment, meaning when it “occurs during school
hours on school grounds.” Id. at 665 (citing Davis, 526 U.S. at 646). The court
held that the school district’s response amounted to deliberate indifference. Id. at
671.
Plaintiffs allege the events at Marion created a racially hostile
environment at Marion ISD. The Court finds that although the events to which

38 

Kyana, Kyra, and Kavin did not occur daily or even weekly, they nonetheless did
create a racially hostile environment.
As evidence of the racially hostile environment, the Court first notes
that ultimately, Kavin, Kyra, and Kyana each withdrew from Marion ISD because
they could no longer tolerate the environment. Additionally, as in Zeno, the Court
finds that the use of one of the most heinous racial epithets against these three
young women easily exceeds characterization as the teasing of school children.
Based on the multiple instances of student harassment, the Court finds that there
was a racially hostile environment.
Once a racially hostile environment is established, the plaintiffs must
also demonstrate that this environment was linked to a denial of educational
opportunities. Couch, 843 F. Supp. 2d at 908. Here, there is evidence in the
record that the racially hostile environment did affect the Kyra’s, Kyana’s, and
Kavin’s ability to obtain educational opportunities. Kyana eventually completed
her work in an office next to a guidance counselor’s, and Kavin had to be escorted
between the middle school and high school to feel safe.
2.

Notice

A plaintiff must also show that the school district had notice of the
racially hostile environment. 59 Fed. Reg. at 11449. Here, the record contains
sufficient evidence that Marion had actual knowledge. The sisters reported nearly
39 

all of the incidents they experienced to school teachers or administrators, Ms.
Fennell-Kinney filed multiple grievances with Marion ISD, and Ms.
Fennell-Kinney met with the school administrators on multiple occasions. The
Court finds that Marion had actual notice of the racially hostile environment.
3.

The School’s Response

When faced with a racially hostile environment, a school has a duty to
respond appropriately. Watson, 2008 WL 4279602, *11. The school “has a legal
duty to take reasonable steps to eliminate a racially hostile environment.”
Gomiller v. Dees, No. 4:06CV33–D–B, 2007 WL 1031359, at *4 (N.D. Miss. Mar.
29, 2007). To demonstrate that a school did not take reasonable steps to eliminate
a racially hostile environment, a plaintiff must show that the school’s response
amounted to deliberate indifference and was “clearly unreasonable in light of the
known circumstances.” Maislin v. Tenn. State Univ., 665 F. Supp. 2d 922, 931
(M.D. Tenn. 2009) (internal citations and quotation marks omitted).
As discussed above, in Watson, the court found that a school’s
response was not deliberately indifferent when, after a middle-school student used
racial epithets, the school suspended the student and instructed its students that the
use of racial slurs was unacceptable. 2008 WL 4279602, at *11. Similarly, in
Gomiller, the Court found that a school was not deliberately indifferent when it
took “immediate steps to investigate and eliminate the racially hostile
40 

environment.” 2007 WL 1031359, at *4. In Gomiller, a teacher used a racial
epithet when referring to a student. Id. at *1. When the school learned of this
occurrence, the school district immediately began an investigation and suspended
the teacher without pay pending a school board hearing. Id.
Here, Marion was on notice of incidents including racial slurs directed
at plaintiffs, Facebook postings made about the students, allegations that teachers
were treating these three students differently because of their race, the videotaping
of Kavin’s cheerleading tryouts, racially motivated text messages, and two
incidents of nooses being placed in the lockers of African-American students.
Although Plaintiffs claim the school did nothing in response to the
racial harassment directed at Plaintiffs, the evidence speaks to the contrary. As
discussed above and outlined in Marion’s response to Plaintiffs’ grievances,
Marion did take a number of measures to eliminate the racially hostile
environment. Marion consulted with the NAACP and subsequently brought in the
Department of Justice to assist with cultural sensitivity training, in addition to the
training Marion already provided. (Dkt. # 37-6 15:13–16:4.) When Kavin notified
Marion that she felt unsafe on campus after the noose incident, Marion assigned a
staff member to walk with her and escort her around campus. (Dkt. # 37-4 87:12–
88:3.) Similarly, when Kyana felt anxious at school, Marion created a plan for

41 

Kyana that allowed her to work in a counselor’s office to ensure that she could
complete her studies and graduate with her class. (Dkt. # 37-2 87:11–24.)
Additionally, Marion responded adequately to the incidents of racial
harassment. Marion’s actions appear to have prevented students who uttered racial
slurs from subsequently repeating them. Similarly, in response to the second noose
incident, arguably the most severe, the school began investigating immediately to
attempt to discover the perpetrator. Marion involved its campus police officers in
the investigation, and eventually the FBI. However, Kyana refused to pursue the
matter further, and the local investigation was dropped. The Court finds that
Marion responded reasonably to the incident. School officials took it seriously and
involved the authorities. Marion held mandatory trainings for the teachers and
assemblies for its students aimed at creating awareness of racism and preventing
further racial harassment. Additionally, Marion took steps to ensure the protection
of these students: when Kavin felt unsafe, the school assigned a teacher to walk
with her; when students used racial epithets, the school contacted the student’s
parents and each girl reported that she had no further incidents after the topic was
addressed.
As in Gomiller and Watson, once on notice of a racially hostile
environment, Marion took immediate steps to remedy the problem. When a noose
was discovered in the parking lot by Kyana’s car, Marion immediately began
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investigating the problem. When individuals used racial epithets, the school
quickly addressed the problem and issued reasonable punishments. Additionally,
Marion implemented broader measures, including additional sensitivity training to
address the culture of Marion as a whole.
Marion took reasonable measures to remedy the discrimination and
harassment that Kyra, Kyana, and Kavin endured. The fact that harassment
continued, in this instance, and that it was perpetrated by different individuals,
appears to this Court to be more reflective of some of the students, that Marion, as
a public school, had a duty to educate. The Court notes that these instances of
racial harassment, although serious, were disbursed over more than a decade. It
appears to the Court that these unfortunate events are isolated incidents reflecting
the bigoted views of a few individual students rather than of the culture of Marion
as a whole. Similarly, the fact that there were repeated incidents of racial
harassment does not appear to stem from any deliberate indifference on the part of
Marion, or lack of appropriate response. As a public school, Marion cannot
control who it is bound to educate, and when racist attitudes are already ingrained
in a segment of the students it serves, Marion has an obligation to take reasonable
steps to eliminate the racially hostile environment; and Marion has done so. It is
unrealistic, and the Court declines, to hold Marion liable for the bigoted remarks of

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individual students when Marion has made substantial efforts to prevent that type
of conduct.7
The Court finds that Marion was not deliberately indifferent to the
racially hostile environment, and therefore, Plaintiffs cannot sustain a claim under
Title VI. The Court GRANTS Defendants’ Motion for Summary Judgment on this
claim.
CONCLUSION
For the reasons given above, the Court GRANTS Defendants’ Motion
for Summary Judgment (Dkt. # 37).
IT IS SO ORDERED.
DATED: San Antonio, Texas, August 28, 2014.

7

The Court finds the use of racial epithets or discriminatory treatment to be
abhorrent and intolerable at any level.
44