Middle District Court of Alabama, Northern Division
Case No. 2:12-CV-424-WKW [WO]
March 3, 2014
Keywords: disability harassment, education, individuals with disabilities/family members, educators
Summary: A.M.’s parents filed a lawsuit against the Chilton County Board of Education alleging that they failed to prevent peer-on-peer bullying and discriminated on the basis of disability, which precipitated A.M.’s suicide. The district court ruled in favor of Chilton County’s motion for summary judgment, because the plaintiffs failed to provide sufficient evidence that the defendant intended to discriminate against A.M. on the basis of her disability, to allow plaintiff’s claims to survive.
On May 12, 2010, A.M., a 15 year-old student of Jemison High School in Chilton County committed suicide by jumping off an overpass bridge above an interstate highway. A.M.’s parents, Jill and Jim Moore, filed suit against the Board because they felt that their daughter had been the victim of bullying from other students about her weight and the fact that she walked with a limp.
A.M. was overweight at 225lbs and a height of 5'4". She also was diagnosed with Blount’s Disease, a "progressive disorder of the proximal growth plate of the tibia, resulting in a range of bowing deformity of the legs," but had corrective surgery the summer before her 5th grade year. This surgery, according to A.M.’s doctor, was successful, and after that year A.M. needed no further walking aids (such as a wheelchair or cane).
However, according to two students at the high school, A.M. was bullied for her weight and possibly her gait. They testified that she was harassed on a daily basis with name-calling and teasing. The Moores further allege that the bullying intensified to the point of A.M. being locked in a janitor’s closet, her pants and underwear being pulled down in front of a crowd of peers, and being continually targeted with juvenile acts, such as "pig races".
Some teachers were told of the harassment during her two years of high school by a friend of A.M.. Occurring in areas such as hallways, the lunch room, and on a school bus, the court describes the harassment as taking place in situations and locations that were largely unsupervised. According to a friend of A.M., some teachers would step outside their classrooms to oversee the hallway area near them, and some allowed A.M. to stay in the classroom during much of the passing time between classes possibly as a reaction to alleged bullying, but this was not confirmed. The bus driver had disciplined one student for teasing A.M., but otherwise no action was taken regarding A.M. allegedly being bullied.
A.M.’s parents filed a lawsuit against the Board of Education alleging that they failed to prevent peer-on-peer bullying and that they discriminated against A.M. on the basis of disability under Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. The first claim of failing to prevent peer-on-peer bullying was dismissed, and the Board filed a motion for summary judgment for the discrimination charges.
This analysis is based upon the standard set out by the U.S. Supreme Court in Davis v. Monroe County Board of Education; although Davis was a case addressing sexual harassment among peers, the district court uses the Davis framework for this analysis of disability harassment. According to Davis, and making adjustments for a disability harassment claim, there are five elements to be addressed: (1) the plaintiff is an individual with a disability, (2) she was harassed based on that disability, (3) the harassment was sufficiently severe or pervasive that it altered the condition of her education and created an abusive educational environment, (4) the defendant knew about the harassment, and (5) the defendant was deliberately indifferent to the harassment.
(1) The plaintiff is an individual with a disability.
It is not contested that A.M. was overweight or had a diagnosis of Blount’s Disease. The Board argues that A.M.’s weight was not a disability and the Moores do not clarify their claim regarding A.M.’s obesity. The court states that it is as yet undecided whether obesity is a qualified disability under the ADA in the Eleventh Circuit.
The ADA defines a "disability" as "a physical or mental impairment that substantially limits one or more major life activities," and it was contested whether A.M.’s Blount’s Disease limited a major life activity. The Moores claimed that A.M. was limited in the activities of running and jumping, whereas the Board claims that she had no such limitations, and even if she had, running and jumping are not "major life activities". Regardless, and as the Moores point out, the ADA Amendments Act (ADAAA) broadened the definition of "disability", and its regulations caution courts to focus primarily on "whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity." Thus, the court assumes that A.M. was an individual with a disability for the purposes of the summary judgment motion.
(2) She was harassed based on that disability.
The Board argues that any harassment that A.M. endured was based on her weight, not her limp, and thus would not qualify as harassment based on disability. The court assumes, as described above, that A.M.’s weight and her limp are both considered disabilities for the purposes of this proceeding, and so the Board’s argument is moot.
(3) The harassment was sufficiently severe or pervasive that it altered the condition of her education and created an abusive educational environment.
Discovery did not offer evidence of the alleged intense harassment, but did offer evidence of constant name-calling and derogatory remarks. It is contested that this harassment was at a level that would be considered severe and pervasive, but the court again assumes, but does not decide, that the Moores raised a genuine dispute of material fact and that the harassment could have denied A.M. equal access to education.
(4) The defendant knew about the harassment.
Here, the court holds that "An 'appropriate person' must have actual knowledge of the discrimination or harassment the plaintiff alleges occurred."
First, to identify or define an appropriate person, the court borrows from the Tenth Circuit: "We decline simply to name job titles that would or would not adequately satisfy this requirement. … Because officials' roles vary among school districts, deciding who exercises substantial control ... is necessarily a fact-based inquiry." The district court notes the Eleventh Circuit leaves open the question whether a teacher is an appropriate person. The Moores do not offer any evidence to prove that A.M.’s teachers or her bus driver were appropriate persons that had the authority to take corrective measures regarding the alleged peer-on-peer disability harassment.
Second, the Moores argue that there was actual knowledge because of an "open and obvious" theory. This theory suggests that the harassment was so well known and so openly done, that there was no way that appropriate persons could not know it was occurring. However, the Supreme Court in Davis explicitly rejected this theory because it is based on a standard that allows plaintiffs to submit evidence that defendants "should have known" about incidents, instead of evidence of specific incidents where school officials were present and therefore had knowledge of harassment. The district court continues its analysis in agreement with Davis, and requires actual knowledge as their standard: that is, personal knowledge such as what the appropriate person saw, when they saw it, or where they saw it. The Moores present no evidence of actual knowledge of disability harassment against their daughter among teachers, bus drivers, or other school officials.
(5) The defendant was deliberately indifferent to the harassment.
The court holds that the Board cannot be held liable for disability harassment of which it had no actual notice, but nonetheless offers some explanation of what this last criterion would require. The "deliberate indifference" standard is difficult to prove. The court quotes both a Fifth Circuit case and the Davis decision explaining that responses that are "merely inept, erroneous, ineffective, or negligent" do not meet the standard, and that school officials would have had to have actual knowledge of the harassment, and then "made no effort whatsoever either to investigate or to put an end to the harassment." The Moores do not assert that no action was taken in response to the harassment that A.M. may have suffered. Testimony offered shows that one student was disciplined and that teachers did offer some additional supervision where A.M. was concerned. Thus, even if the Moores could have shown that the Board had actual knowledge, they did not offer evidence that would meet the rigorous "deliberate indifference" standard.
The court granted the Board’s motion for summary judgment. It reiterated that the standard for holding the Board liable under the ADA and the Rehabilitation Act for peer-on-peer disability harassment is rigorous, and that the Moores did not provide sufficient evidence to allow their claims to survive.
Analyzing a peer-on-peer harassment issue with the framework laid out in Davis is not new. The courts have utilized the Davis framework to evaluate whether a school district showed "indifference to harassment or discrimination in response to harassment" (see S.S. v. Eastern Kentucky University (6th Cir. 2008); see also Mathis v. Wayne County Bd. of Educ. (6th Cir. 2011)), and whether harassment was "severe, pervasive, or objectively unreasonable" (see Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist. (5th Cir. 2011)), but these cases were not brought under the ADA or Rehabilitation Act.
However, Federal Courts at the district and circuit levels also have used the Davis framework to analyze peer-on-peer disability harassment claims under §504 of the Rehabilitation Act. For example, a district court in the 5th Circuit used the “deliberate indifference” standard for a §504 claim in a similar case involving peer-on-peer harassment leading to suicide (see Estate of Lance v. Lewisville Independent School District (E.D. Tex. 2014)). A district court in the 4th Circuit used this standard in a §504 case involving sexual harassment (see Biggs v. Board of Education of Cecil County Maryland (D.Md. 2002)). A district court in the 6th Circuit also used the Davis standard for a §504 peer-on-peer harassment case (see Doe v. Big Walnut Local School Dist. Bd. of Educ. (S.D. Ohio 2011)). Moore brings the Federal District Court for the Middle District of Alabama in line with this trend to use a Davis analysis in §504 claims.
Read the opinion at: