Opinion
CAUSE NO. 1:19-CV-608-LY
09-29-2020
Camron SNEED, Plaintiff, v. AUSTIN INDEPENDENT SCHOOL DISTRICT, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Before the court in the above-styled and numbered cause are Defendant Austin Independent School District's (the "District") Motion for Summary Judgment filed July 10, 2020 (Doc. #60), Plaintiff Camron Sneed's Response to the School District's Rule 56 Motion for Summary Judgment filed August 5, 2020 (Doc. #70), and the District's Summary Judgment Reply filed August 12, 2020 (Doc. #74).
This case was referred to a United States Magistrate Judge for report and recommendation. See 28 U.S.C. § 636(b) ; Fed. R. Civ. P. 72 ; Loc. R. W.D. Tex. App'x C, R. 1(d). The magistrate judge signed a report and recommendation on September 11, 2020 (Doc. #77), recommending that this court grant in part and deny in part the summary judgment motion. Specifically, the magistrate judge recommended that the motion should be granted so far as Plaintiff Camron Sneed's Title VI claim is based on a dozen factual allegations and incidents and so far as Sneed attempts to couch her Title VI claim on the District's alleged failure to train, failure to comply with its own policies and regulations, and failure to offer counseling services. The magistrate judge additionally recommended that the motion be denied so far as Sneed's Title VI claim is based on three distinct factual allegations and incidents.
A party may serve and file specific written objections to the proposed findings and recommendations of a magistrate judge within 14 days after being served with a copy of the report and recommendation and thereby secure de novo review by the district court. See 28 U.S.C. § 636(b) ; Fed. R. Civ. P. 72(b). A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation in a report and recommendation bars that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Services Auto Ass'n , 79 F.3d 1415 (5th Cir. 1996) (en banc).
The record shows that all parties had notice of the report and recommendations by September 11, 2020, and that objections were due on or before September 25, 2020. The District filed objections (Doc. #80) and a motion for leave to file exhibits thereto under seal (Doc. #81) on September 25, 2020. The court granted the motion on September 28, 2020 (Doc. #82). In light of the objections, the court undertakes a de novo review of the record and applicable law.
The court is of the opinion that the objections do not raise any issues that were not adequately addressed in the report and recommendation. Therefore, finding no error, the court will accept and adopt the report and recommendation as filed for substantially the reasons stated therein. Accordingly,
IT IS ORDERED that the District's objections to the report and recommendation of the United States Magistrate Judge are OVERRULED.
IT IS ORDERED that the report and recommendation of the United States Magistrate Judge filed September 11, 2020 (Doc. #77) is ACCEPTED AND ADOPTED by the court.
IT IS FURTHER ORDERED that the District's Motion for Summary Judgment filed July 10, 2020 (Doc. #60) is GRANTED IN PART and DENIED IN PART.
The motion is GRANTED to the extent that Sneed's Title VI claim is based on the following factual allegations and incidents: (1) the use of racial slurs by band students; (2) the Indianapolis-band-trip incident; (3) the Halloween-feedbag incident; (4) the music-during-class incident; (5) the use of the phrase "noodle nigger" by a student; (6) the "vape pen incident"; (7) the TCYS-show incident; (8) the tractor incident; (9) the horse-competition incident; (10) the FFA-officer-election incident; (11) the FFA-alumni-organization-dissolution incident; and (12) all factual allegations concerning students drinking, smoking, and setting fires at the Farm.
The motion is DENIED to the extent that Sneed's Title VI claim is based on the following factual allegations and incidents: (1) the "sass-quatch" award incident; (2) the use of racial slurs by FFA members; and (3) racial slurs graffitied throughout the High School and Farm. These three factual allegations and incidents are the only causes of action that shall proceed.
ORDER AND REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
MARK LANE, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE:
Before the court are Austin Independent School District's Motion for Summary Judgment (Dkt. #60), Camron Sneed's Opposed Motion to [Supplement] Plaintiff's Response to the Austin Independent School District Motion for Summary Judgment (Dkt. #71), and all other related filings. See Dkt. #59, #70, #74. After reviewing the entire case file, relevant case law, and determining a hearing would be unhelpful in this matter, the undersigned issues the following Report and Recommendation to the District Court.
These motions were referred by United States District Judge Lee Yeakel to the undersigned pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas.
The undersigned notes that Plaintiff's filings are, at times, difficult to decipher and missing crucial aspects of this case. For example, Plaintiff's Response contains a myriad of inaccurate citations that do not accurately cite the record. See Dkt. #70 at 5-15. Additionally, Plaintiff's counsel mistakenly found it advisable to ask the court for a page-extension and then use this extension to write a "prologue" describing a questionably-related, hypothetical case that includes a reference to the reader's "wife" being called a "bitch." See id. at 1-3. This tactical decision is even more questionable considering the grammatical errors and lack of controlling authority in Plaintiff's Response, and Plaintiff counsel's failure to respond to the most crucial legal question in this case. While it is this court's practice to avoid criticizing attorneys, the above shortcomings have required the court to expend additional resources on this case and, certainly, have not aided the administration of justice.
I. BACKGROUND
On June 12, 2019, Pamela Parks and Charles Sneed, as both parents and next friends of Camron Sneed ("Plaintiff"), filed the above-styled discrimination lawsuit against Austin Independent School District ("AISD"). Dkt. #1. As reflected in Plaintiff's Second Amended Complaint, Plaintiff turned eighteen during the pendency of this litigation and, consequently, has amended her pleadings in order to bring this lawsuit individually as an adult. Dkt. #47 (Second Amended Complaint). Plaintiff levies two claims against AISD: a statutory Title VI claim and a Fourteenth Amendment due process claim pursuant to 42 U.S.C. § 1983. See id. Because the undersigned has recommended the dismissal of Plaintiff's section 1983 claim, see Dkt. #76, it will only address AISD's Motion for Summary Judgment as it relates to Plaintiff's Title VI claim.
Plaintiff, who identifies as a female African-American, was a student at James Bowie High School (the "High School") in the Austin Independent School District from the fall of 2016 through the spring of 2019. While Plaintiff's Second Amended Complaint is no model of clarity, see Dkt. #47, it alleges that Plaintiff was repeatedly and routinely the victim of student-on-student racial harassment and bullying, id. at 2.
Despite the court's best effort to organize the myriad of allegations in the parties’ briefing, the undersigned recognizes some of these events may overlap.
Plaintiff describes a plethora of alleged race-based student-on-student harassment incidents throughout her filings. See Dkt. #47, #70. While the details of each incident vary in both detail and specificity, a pattern of behavior quickly emerges. As is described in more detail below, Plaintiff is discriminated upon by students, Plaintiff informs her mother ("Parks-Sneed"), and Parks-Sneed informs either an AISD teacher or administrator about the incident.
Plaintiff alleges that she heard various iterations of the derogatory racial slur "nigger" "everywhere and daily" at the High School, specifically during band. Dkt. #70 at 6; Dkt. #60-1 at 11-12, 16. Upon hearing the derogatory term, Plaintiff would sometimes report it to Reid Paxton, the percussion director. Id. Additionally, Plaintiff would occasionally tell Parks-Sneed, who later reported the incident to Ryan Thomas, the band director. Id. at 16. While Plaintiff alleges students would still use the word "nigger" around her in band, she concedes that Paxton would do something about the student's misbehavior whenever she told him and his intervention would, for a time, quell the harassment. Id. at 12.
Plaintiff alleges she was the recipient of various racial slurs, including "fuck that nigger," "I'll kill a fucking nigger," "nigger bitch," "black bitch," and "noodle nigger." See Dkt. #47.
In November of 2016, Plaintiff attended a band trip to Indianapolis. Id. at 13, 130, 249. While getting ready for an event, a fellow student ("D.") told her and one other African-American student that their hair "look[ed] like shit." Id. Plaintiff alleges she broke down and called Parks-Sneed to let her know that the "racial talk" was happening again. Id. Parks-Sneed subsequently spoke with the High School's administrative assistant, who relayed the message to the then interim principal, Susan Leos. Id. at 249. Because Leos was unavailable, assistant principal Lawrence Britton called and spoke with Plaintiff. Id. Plaintiff told Britton about the hair incident as well as the racial epithets she frequently heard from other band members. Id. at 13. Once back at school, D. was made to apologize. Id. Plaintiff was never confronted by the band director about the incident, but did speak with an unidentified "counselor or AP" that asked her what had happened and had her write down "some key points [about] it." Dkt. #60-1 at 15.
On April 29, 2017, at the end-of-the-year band banquet, Plaintiff was given the "sass-quash" award in front of the entire band. Dkt. #47 at 14; Dkt. #60 at 16-17, 151-152. Although the student who gave Plaintiff the "award" explained to the audience that the award was a joke based on Plaintiff's alleged sassiness, Plaintiff contends it was an insult "as Sasquatch is a six-foot black gorilla." Dkt. #70 at 7. Awards given at the banquet are customarily approved by the band instructor. Dkt. #60-1 at 151. Parks-Sneed soon after spoke with Thomas about the incident, id. at 17, and spoke with principal Mark Robinson the following school year. Id. at 152. There is no evidence that anything was done in response to this incident by AISD. See Dkt. #60 at 5; Dkt. #70 at 7.
Plaintiff also contends she heard various racial slurs, including "nigger," during FFA events and classes. Dkt. #70 at 8. On December 14, 2016, Parks-Sneed accompanied Plaintiff to a school-affiliated property referred to as "the Farm" where she heard various racial slurs, including "I'm so fucking mad I could kill a nigger." Dkt. #60-1 at 22-26. Although these statements were made in the presence of a teacher, Ms. Black, Plaintiff contends the teacher did not intervene. Id. Parks-Sneed raised her concerns about this incident to Leos and assistant principal Vicente Trevino during an alumni meeting. Id. at 132-34. In response to this and other improper conduct occurring at the Farm, Leos and Trevino instated a curfew of 7:00 p.m., instructed campus police to patrol the Farm more frequently, and encouraged parents to report misbehavior. See Dkt. #59-2 at 29. Parks-Sneed additionally raised her concerns regarding the students’ racial language at the Farm in email exchanges with Leos and Trevino. Dkt. #60-1 at 250; Dkt. #59-2 at 8. Parks-Sneed also spoke with Craig Shapiro, the associate superintendent. Dkt. #59-2 at 8.
While Plaintiff asserts that Black took actions related to students drinking on the Farm, the parties do not clearly direct the court to any evidence that Black took action regarding the discriminatory remarks. See Dkt. #60-1 at 24-25.
Plaintiff also states that students "carved racist slurs into the woodwork at the farm, on the walls, [and] on the beams and sliding doors," Dkt. #70 at 9; Dkt. #60-1 at 25, and that she occasionally informed Parks-Sneed or a teacher about the graffiti, Dkt. #60-1 at 26. AISD claims through the testimony of two teachers that there was no racial graffiti in the Farm, Dkt. #59-3 at 4, and that its staff immediately covered up any expletives or phallic representations with paint, Dkt. #59-3 at 6. Plaintiff also observed the word "nigger" carved into the wall in the girl's bathroom near the gym in the High School. Dkt. #60-1 at 20. Plaintiff asserts she told coaches about the graffiti, but it remained year-round. Id. at 20. AISD contends this vandalism "was not reported to anyone." Dkt. #60 at 9.
2. 2017-2018 School Year
During October of 2017, an unknown student hung a white feedbag from the rafters of the Farm with a rope. Dkt. #60-1 at 29-32, 145, 301. The feedbag was stuffed to look like a head and was hung from its "neck." Id. Plaintiff was offended and believed the feedbag hung by its neck was intended to harass her on account of her race. Id. at 30. An image of the feedbag was sent around the school via social media. Id. at 166. Plaintiff and Parks-Sneed brought it to agriculture teacher Shelby Stephens's attention, who allegedly advised students to hang the feedbag by its "head instead of the neck" upon being informed from students that the feedbag was merely "Halloween decoration." Id. at 29-30. Plaintiff contends it was the only "Halloween decoration" in the entire farm. Id. Additionally, Stephens had the students write "Boo, I'm a ghost" on the feedbag. Plaintiff told Parks-Sneed about the feedbag, and Parks-Sneed communicated the incident to Leos and Robinson. Robinson subsequently apologized about the feedbag incident, expressed his remorse, and the feedbag was taken down. Id. at 147-48. However, Plaintiff alleges the feedbag was not thrown away but laid on Plaintiff's equipment. Id. at 148. Parks-Sneed subsequently threw it away. Id. AISD contends that Leos conducted an investigation into the incident, but was unable to identify the student that hung the feedbag. Id. at 301.
Like many of these conversations, Parks-Sneed spoke with school officials about several issues she wished to raise, not solely about the incidents described above. See Dkt. #60-1 at 146-67.
During this school term, Plaintiff also contends that a number of students, including Kylee R., would purposefully play music during class that used the word "nigger" when Plaintiff was present. Dkt. #60-1 at 28-30. Additionally Plaintiff contends the students "purposefully blast[ed] that word" whenever she was nearby. Dkt. #70 at 10; Dkt. #60-1 at 28-30. Plaintiff contends she would not complain most of the time because her teacher, Amber Dickinson, would hear the music and tell the students to turn it off. Dkt. #60-1 at 28-30. The days Plaintiff did complain to Dickinson, she "wouldn't let them do it the next day or play music the next day or she would just move her speaker so they wouldn't get it for that day." Id. at 28.
On December 7, 2017, Plaintiff was in Dickinson's class when another student, W.G., stated, "Hey [Plaintiff], I have a new nickname for you. Noodle nigger." Dkt. #60-1 at 31-32. Plaintiff told Parks-Sneed about this incident later that day, and Parks-Sneed called Robinson's office to report the incident. Dkt. #60-1 at 31-32. Robinson spoke with Dickinson, who had not heard the slur, and assigned assistant principal Stephanie McGraw to investigate. On December 12, 2017, McGraw and Dickinson met with W.G. and his parents about the incident, informing W.G. that his behavior needed to stop and "if it continued [AISD] would ... assign consequences such as suspension." Dkt. #60-1 at 301; Dkt. #60-5 at 8. Additionally, W.G. was issued a temporary ban from the Farm, and Parks-Sneed was informed that counseling staff was available to support her. Id. at 10.
During July of 2018, FFA Officers, including Plaintiff, traveled to a convention in Fort Worth chaperoned by Dickinson and Stephens. Dkt. #60-1 at 38-42; Dkt. #60-3 at 8. During the trip, Plaintiff told Dickinson that other students were impermissibly using a vape pen. Id. Dickinson and Stephens spoke to each student about the vape pen but were unable to confirm Plaintiff's allegations. Id. Plaintiff contends she experienced additional harassment as a result of the "vape pen incident," like being called a "fucking nigger" by other students, being left out of FFA Officer chats and meetings, and not being provided information others received. Id. Plaintiff concedes that retaliation from the other FFA Officers ceased once she complained to assistant principal Stephanie McGraw. Id. However, Plaintiff maintains the racial slurs in FFA continued. Id. at 42-43. In light of this incident and a corresponding investigation, AISD instituted a new rule that FFA Officers who continued to exclude others would be placed on probation. Id. at 41, 302.
3. 2018-2019 School Year
During her junior year, Plaintiff attended the Travis County Youth Show ("TCYS") at the Farm with her classmates. Then former student, Kylee R., who had a long history of using racial epithets and playing offensive music in Plaintiff's presence, also came to the TCYS. Dkt. #60-1 at 47-51. Plaintiff reported Kylee R.’s presence to security who then evicted Kylee from the premises. Dkt. #60-3 at 9-10. Afterwards, Plaintiff learned from a friend that Kylee and other adults were gossiping about the criminal history of Plaintiff's father ("Sneed Sr."). Id. Plaintiff became upset and found Stephens, who attempted to calm Plaintiff down and told her to "put it in a box and just lock the key and throw it away." Dkt. #60-1 at 50. Additionally, Plaintiff informed Parks-Sneed, who called Shapiro and informed him about the incident. Id. at 166-170. Shapiro in turn notified Robinson, who called Plaintiff to ensure that she felt safe and wished to stay at the TCYS. Id.
For example, Kylee R. is alleged to have injured Plaintiff's animals. Notably, AISD had previously conducted an internal investigation into these incidents and, along with instigating the issuance of a criminal trespass warrant against Kylee R., banned Kylee R. from AISD property, including the Farm. Dkt. #60-1 at 302-03.
In light of the foregoing, Parks-Sneed began communicating with school board member Yasmin Wagner in the fall of 2018, informing her of the above incidents. Id. at 216. Wagner communicated these incidents to Shapiro, who then directed Robinson to inform Wagner about "the action that was taken in response to each incident that was identified." Id. Parks-Sneed also informed Shapiro about many of these incidents. Id. at 161-62.
Plaintiff became "very depressed and very introverted" towards the end of her junior year. Dkt. #60-1 at 52. Because of these feelings, she sought out a private therapist who diagnosed her with depression. Id. Plaintiff still meets with a therapist. Id.
4. Miscellaneous Facts
Upon sifting through the parties’ voluminous filings, the court notes AISD references a number of incidents that Plaintiff does not address or respond to in her thirty-page Response. Compare Dkt. #60, with Dkt. #70. For the sake of thoroughness, and because many of these allegations were vaguely referenced in Plaintiff's Second Amended Complaint, the court will briefly summarize these incidents here.
• In 2016, Parks-Sneed expressed concerns to Trevino that she witnessed students drinking and smoking at the Farm, as well as being at the Farm after hours. Dkt. #60-1 at 341.
• In November of 2016, Parks-Sneed also reported to Trevino that someone had set a fire at the Farm. Id.
• Sometime in 2018, Plaintiff ran for an officer position in the FFA program. Dkt. #60-3 at 8. Candidates, including Plaintiff, were required to submit an application, write an essay, and give a speech; candidates were not permitted to use props or music. However, two white students were permitted to sing, rap, and use power points for their speeches. Id. Plaintiff was not afforded this same opportunity. Id. Plaintiff was voted into an officer position and other students were similarly disadvantaged by the two students who were afforded an exception to the general rule. Id.
• Plaintiff was a member of the High School's horse judging competition team with two other students, where she was told everyone must comply with practice hour requirements or they would be removed from the team. Id. at 7. Despite verbal warnings, the two other students missed various practices. Id. Because no other students were interested and dropping the two poor performing students from the team would prevent Plaintiff from competing, AISD decided to allow all students to compete. Id.
• A thirty-year old alumni organization, of which Parks-Sneed was a member, was disbanded around the same time that she brought racial disparity complaints to the organization's attention. Dkt. #47 at 19. Meeting notes show the organization was disbanded because it operated as a separate entity rather than working with the school, causing tension within the program. Dkt. #60-1 at 300. After CTE Curriculum Coordinator for the District, Traci Hendrix, met with Parks-Sneed following the organization's dissolution, Hendrix developed a plan to form a "United We Succeed" team for the FFA. See Dkt. #60-5 at 37-56.
• In 2018, Robinson learned that a tractor previously maintained by the FFA alumni board had been removed from the Farm without AISD's knowledge. An investigation was conducted and an African-American male – mistakenly identified as Sneed Sr. by Stephens and Dickinson – was seen taking the tractor off the Farm on a surveillance video. Dkt. #60-1 at 46; see also Dkt. #60-3 at 9; Dkt. #60-8. Robinson did not review the surveillance footage in an effort to remain impartial and left the criminal investigation to law enforcement. Id. AISD took no further
actions and no criminal charges, warrants, or arrests were ever made. Id. Plaintiff was not aware of the police report nor knew about the allegations surrounding the tractor. Dkt. #60-1 at 46. When adults in the "FFA community" began spreading rumors involving Sneed Sr. and the tractor, Robinson and Shapiro met with the adults believed to be involved in the rumors and asked them to stop. Notably, these adults do not appear to have been affiliated with AISD. See Dkt. #60-8.
5. Procedural History
Plaintiff filed her discrimination lawsuit on June 12, 2019, seeking relief under 42 U.S.C. § 1983 and Title VI. After twice seeking leave to amend her pleadings, Plaintiff filed her Second Amended Complaint on April 29, 2020. Dkt. #47. Plaintiff claims that AISD violated her civil rights pursuant to Title VI "because the supervisory staff with [AISD] knew that [Plaintiff] was being bullied, harassed and physically assaulted based upon her race," yet failed to keep her safe from harm, failed to provide an environment that was not hostile, failed to investigate the harassment allegations, and failed to remedy the negative effects that Plaintiff experienced. Id. at 26. Additionally, Plaintiff appears to argue that AISD violated Title VI by failing to comply with its own Title VI regulations and policies, and failing to offer Plaintiff school-based counseling. Id. at 21-22.
On August 31, 2020, the undersigned recommended that Plaintiff's section 1983 claim be dismissed. See Dkt. #76. Now before the court is AISD's Motion for Summary Judgment, whereby AISD argues Plaintiff's Title VI claim should be denied based on the summary judgment evidence. Dkt. #60. Plaintiff filed a response, and AISD filed a reply. See Dkt. #70, #74.
One day before AISD's reply was due, Plaintiff filed her Opposed Motion to Supplement Plaintiff's Response to the Austin Independent School District's Motion for Summary Judgment. Dkt. #71. Plaintiff's counsel contends he "was using a portion of the the [sic ] Title VI response in Sneed for [another case]" and "in doing so ... realized he included facts in his Response ... relative to the testimony of Dr. Paul Cruz, but did not include the Deposition Exhibit. Nor did he include citation to the deposition testimony." Id. at 1. Plaintiff seeks to supplement her response with the deposition exhibits and testimony. AISD did not file a response.
II. MOTION TO SUPPLEMENT RESPONSE ( DKT. #71)
As a preliminary matter, the court first considers Plaintiff's Opposed Motion to Supplement her Response to AISD's Motion for Summary Judgment. Dkt. #71. After reviewing the proposed supplemental material, there is no justification for why the supplement is necessary other than Plaintiff counsel's own mistake. Nonetheless, AISD has not filed a response and the supplemental material does not sway this court's recommendation one way or the other. Accordingly, the undersigned sees no harm in allowing the supplement, since it will not require further briefing or delay the proceedings in this case. Thus, Plaintiff's "Opposed Motion to the [sic ] Supplement Plaintiff's Response to the Austin Independent School District Motion for Summary Judgment" is GRANTED . Dkt. #71.
III. MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S TITLE VI CLAIM ( DKT. #60)
The most straight forward reading of Plaintiff's Second Amended Complaint reveals a Title VI claim that AISD was deliberately indifferent to student-on-student discrimination against Plaintiff. See Dkt. #47 at 26. Additionally, Plaintiff appears to allege that AISD should be found liable under Title VI because it failed to comply with its Title VI policies and regulations and failed to offer Plaintiff school-based counseling. See Dkt. #47.
In its Motion for Summary Judgment, AISD contends that the undisputed summary judgment evidence shows that Plaintiff cannot support her Title VI claim. Specifically AISD argues that (1) the evidence shows Plaintiff did not experience a racially hostile environment while at High School within the meaning of Title VI, Dkt. #60 at 24; (2) Plaintiff was not deprived of educational opportunities sufficient to support her Title VI claim, id. at 26; (3) it did not act with deliberate indifference to Plaintiff's reported allegations, id. at 27; and (4) it cannot be found liable for many of the incidents because Title VI's notice requirement was not satisfied, id. The court will address these arguments in turn.
A. Legal Standard
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only "if the movant shows there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The party moving for summary judgment bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 585–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Wise v. E.I. DuPont de Nemours & Co. , 58 F.3d 193, 195 (5th Cir. 1995). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Estate of Smith v. United States , 391 F.3d 621, 625 (5th Cir. 2004).
The court will view the summary judgment evidence in the light most favorable to the non-movant. Griffin v. United Parcel Serv., Inc. , 661 F.3d 216, 221 (5th Cir. 2011). The non-movant must respond to the motion by setting forth particular facts indicating that there is a genuine issue for trial. Miss. River Basin Alliance v. Westphal , 230 F.3d 170, 174 (5th Cir. 2000). "After the non-movant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant, summary judgment will be granted." Id.
B. Analysis
Title VI of the Civil Rights Act of 1964 provides in relevant part that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000(d). "Private individuals can bring suit ‘to enforce [section] 601 of Title VI.’ " Fennell v. Marion Indep. Sch. Dist. , 804 F.3d 398, 408 (5th Cir. 2015) (quoting Alexander v. Sandoval , 532 U.S. 275, 279, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) ). Because Title VI "prohibits only intentional discrimination," Sandoval , 532 U.S. at 280, 121 S.Ct. 1511, a Title VI plaintiff must prove discriminatory intent in order to recover compensatory damages, Fennell , 804 F.3d at 408.
It is undisputed that AISD is a program that receives federal financial assistance.
1. Student-on-Student Discrimination Claim
The Fifth Circuit has recognized a racial discrimination claim under Title VI premised on a racially hostile environment arising from student-on-student harassment. Id. To prevail on such a claim, "a plaintiff must allege that ‘(1) the harassment was so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to educational opportunities or benefits provided by the school (a racially hostile environment)[,]’ that ‘the district (2) had actual knowledge,’ that it ‘(3) had control over the harasser and the environment in which the harassment occurs,’ and that it ‘(4) was deliberately indifferent.’ " Bhombal v. Irving Indep. Sch. Dist. , 809 F. App'x 233, 237 (5th Cir. 2020) (quoting Fennell , 804 F.3d at 410 ); see also Davis Next Friend LaShonda D. v. Monroe County Bd. of Educ. , 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999).
The Fifth Circuit has noted that a Title VI student-on-student harassment claim requires that the harassment be based on the victim's "race, color, or national origin." Fennell , 804 F.3d at 409 n.23 (quoting 42 U.S.C. § 2000(d)). This court incorporates this requirement into its "racially hostile environment" analysis.
a. Racially Hostile Environment
The record shows that a genuine fact dispute exists as to whether a racially hostile environment existed. For the harassment to be "severe, pervasive, and objectively offensive," Davis , 526 U.S. at 650, 119 S.Ct. 1661, "the harassment must be more than the sort of teasing and bullying that generally takes place in schools," Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist. , 647 F.3d 156, 167 (5th Cir. 2011). That being said, "[t]here is no question ... that repeatedly ‘being referred to by one's peers by the most noxious racial epithet in the contemporary American lexicon, [and] being shamed and humiliated on the basis of one's race’ is harassment far beyond normal schoolyard teasing and bullying." Fennell , 804 F.3d at 409 (quoting Monteiro v. Tempe Union High Sch. Dist. , 158 F.3d 1022, 1034 (9th Cir. 1998) ).
Although Sanches was a Title IX case, the Supreme Court's Title IX analysis "directly informs" the Title VI analysis. Fennell , 804 F.3d at 408 (citation omitted); see also Fitzgerald v. Barnstable Sch. Comm. , 555 U.S. 246, 258, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009) (explaining that "Congress modeled Title IX after Title VI").
Plaintiff provides evidence that her classmates in FFA and the band frequently called her, or used around her, a number of heinous racial epithets, including "nigger," "noodle nigger," and "fucking nigger." Moreover, the plausible "use of a noose" during the Halloween incident coupled with the vitriolic and epithet-laden graffitied slurs around the Farm and the High School "only underscores the severe, pervasive, and objectively offensive nature of the harassment." Id. ; see Porter v. Erie Foods Intern., Inc. , 576 F.3d 629, 635-36 (7th Cir. 2009) (discussing the historical meaning and power of noose imagery).
AISD contends that the alleged student-on-student harassment is not sufficient to establish Title VI liability because the communications were never directed at Plaintiff. Dkt. #60 at 24-25. This argument is not persuasive. First, the Fifth Circuit has noted that racist attacks do not need to be directed at a plaintiff in order to establish the requisite racially hostile environment. See Fennell , 804 F.3d at 409 (noting that the harassment faced by two non-parties "also points toward a racially hostile environment"); see also Monteiro , 158 F.3d at 1033 ("[R]acist attacks need not be directed at the complainant in order to create a hostile educational environment."). Additionally, this argument fails because the evidence shows that Plaintiff was often the direct target of racial slurs. See Dkt. #60-1 at 31-32.
AISD also contends that many of the harassment allegations had no racial animus and, consequently, do not support Plaintiff's Title VI claim. Dkt. #60 at 24-25. In support of this proposition, AISD provides a list of non-racial explanations for the complained of incidents. Id. at 25. While the court concedes that some of these explanations may be plausible, whether the majority of these incidents have a racial animus is a material question of fact best left for a jury.
For example, AISD alleges "[t]he feedbag that was hung in the barn was a Halloween decoration and not directed at [Plaintiff]." Dkt. #60 at 25.
Nonetheless, it is apparent that a few of the alleged incidents were unequivocally not based on race and, therefore, do not support Plaintiff's Title VI inquiry. The summary judgment evidence shows that retaliation and harassment stemming from the "vaping pen incident" had no racial animus, but rather was instigated by Plaintiff telling on her classmates. This is precisely the type of "teasing and bullying that generally takes place in schools" and cannot sustain a Title VI claim. Furthermore, the evidence clearly establishes that the following allegations similarly have no ties to Plaintiff's race and, therefore, do not support Plaintiff's Title VI claim: Parks-Sneed's allegation of students drinking and smoking on the Farm, the FFA Officer-election incident, the horse-competition incident, and the FFA alumni-organization-disbandment incident. With the exception of these few incidents, the evidence shows a genuine dispute concerning whether Plaintiff was in a "racially hostile environment."
The "vaping pen incident" is not to be confused with allegations that FFA students continually and repeatedly used racial slurs, before and after the vaping pen incident, around Plaintiff.
b. Educational Opportunities
AISD also alleges that "[Plaintiff] can point to no evidence that this harassment deprived [her] of access to the educational opportunities or benefits provided by the school." Dkt. #60 at 26. For support, AISD cites the fact that Plaintiff consistently made good grades, was active in extracurricular activities, held many officer positions in various organizations, and has been admitted to study at LSU. Id.
For harassment to deprive a plaintiff of access to the educational opportunities or benefits provided by the school, "[t]he harassment must have a concrete, negative effect on the victim's education, such as creating a disparately hostile educational environment relative to the victim's peers, forcing the student to change his or her study habits or to move to another district, or lowering the student's grades." Fennell , 804 F.3d at 410. Here, the student-on-student harassment reasonably may have had a concrete, negative effect on Plaintiff's education – Plaintiff has been diagnosed with depression and is meeting with a therapist. See Dkt. #60-1 at 52. Moreover, the factual record shows that Parks-Sneed and Robinson considered pulling Plaintiff out of school in light of the harassment. Dkt. #60-1 at 163-64; see Fennell , 804 F.3d at 410 (finding a fact issue existed concerning the plaintiff's educational opportunities because she had suffered from anxiety and was eventually forced to move school districts). The fact that Plaintiff made the most out of her high school experience despite repeated harassment does not negate the possibility that her access to school benefits and educational opportunities were reduced or less than her peers. Therefore, a genuine fact dispute exists as to whether Plaintiff was deprived of educational opportunities by the "severe, pervasive, and objectively offensive" racial harassment at AISD.
c. Actual Knowledge
Although sparsely briefed, the parties debate whether the "actual knowledge" requirement has been met. Citing Rosa H. v. San Elizario Independent School District , 106 F.3d 648 (5th Cir. 1997), AISD contends that a school district can be held liable only if an appropriate school official with authority to take action on behalf of the district had actual knowledge of the abuse but failed to take action. Dkt. #60 at 27. AISD further argues that under Rosa H. , this knowledge requirement omits "the bulk of employees, such as fellow teachers, coaches, and janitors." Id. (citing Rosa H. , 106 F.3d at 660 ). Accordingly, AISD argues that any evidence that Plaintiff or Parks-Sneed reported harassment to a teacher or a coach – i.e., Paxton, Stephens, Dickinson, or Black – does not impute knowledge of harassment on to AISD. In response, Plaintiff neither responds to AISD's contentions nor cites case law of her own, but rather erroneously asserts that AISD does not contest this "notice" element. See Dkt. #70 at 24. Additionally, Plaintiff broadly asserts that the High School's principals, assistant principals, band director, associate superintendent, and superintendent were on notice of the harassment. Id.
In Rosa H. , a Title IX sexual harassment case, the Fifth Circuit for the first time decided "which individuals within the school district must have known of [the harassment] in order [ ] to conclude that the school district knew of the abuse." 106 F.3d at 659. The court noted that one possibility would be to require a school board member to have knowledge of the harassment, and another was to require any school employee other than the perpetrator to have actual knowledge of the abuse. Id. Trying to strike a balance between these two extremes, the Fifth Circuit held that:
a school district can be liable for teacher-student sexual harassment under Title IX only if a school official who had actual knowledge of the abuse was invested by the school board with the duty to supervise the employee and the power to take action that would end such abuse and failed to do so. This inquiry circumscribes those school employees in the chain of command whom the school board has appointed to monitor the conduct of other employees and, as distinguished from reporting to others, remedy the wrongdoing themselves. At the same time, it locates the acts of subordinates to the board at a point where the board's liability and practical control are sufficiently close to reflect its intentional discrimination. It does so by omitting the bulk of employees, such as fellow teachers, coaches, and janitors, unless the district has assigned them both the duty to supervise the employee who has sexually abused a student and also the power to halt the abuse.
Id. at 660. Accordingly, under Rosa H. , whether a school district has actual knowledge of harassment based on its employee's knowledge depends on (1) whether the employee herself has the power to halt the abuse, and (2) whether the employee has been given the supervisory power to monitor the conduct of the other employees.
A year after the Fifth Circuit's decision in Rosa H. , the Supreme Court addressed this same question in Gebser v. Lago Vista Independent School District. 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). The Supreme Court determined that in cases that do not allege liability based on discriminatory policies, "a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination ... and fails adequately to respond." Id. at 290, 118 S.Ct. 1989. Notably, absent from Gebser ’s holding is the "supervisory power" requirement annunciated in Rosa H. Therefore, because "Congress modeled Title IX after Title VI ... and passed Title IX with the explicit understanding that it would be interpreted as Title VI was," Fitzgerald , 555 U.S. at 246, 129 S.Ct. 788, the proper test for determining whether a school district had the requisite knowledge under Title VI is delineated in Gebser , not Rosa H. That is, whether "an ‘appropriate person’ in the district – i.e., someone who could take corrective measures – had ‘actual knowledge’ of intentional discrimination yet responded with ‘deliberate indifference.’ " Bhombal , 809 F. App'x at 237 (citing Gebser , 524 U.S. at 290, 118 S.Ct. 1989 ). Whether a staff member is an "appropriate person" who had "actual notice is a question of fact." Doe ex rel. Doe v. Dallas Indep. Sch. Dist. , 220 F.3d 380, 384 (5th Cir. 2000) ; see also Doe v. Sch. Bd. of Broward County, Fla. , 604 F.3d 1248, 1256 (11th Cir. 2010) ("the ultimate question of who is an appropriate person is necessarily a fact-based inquiry because officials’ roles vary among school districts"); J.S., III by & through J.S. Jr. v. Houston County Bd. of Educ. , 877 F.3d 979, 989 (11th Cir. 2017) (noting as a matter of first impression that a fact issue may exist as to whether a teacher can serve as an "appropriate person" for purposes of the actual knowledge requirement).
Here, the record reflects that various AISD employees received reports of harassment affecting Plaintiff for years. First, either Plaintiff or Parks-Sneed reported the majority of the incidents to a teacher soon after the incident transpired. For example, the record reflects that Plaintiff would frequently tell her teacher, Paxton, when students used racial epithets around her. See Dkt. #60-1 at 11-12; see also Dkt. #60-1 at 28-30 (Plaintiff telling her teacher, Dickinson, when students would purposefully play music that used the word "nigger" around her). Second, these teachers or Parks-Sneed typically reported these incidents at some later date to higher up school officials, like Leos, Robinson, Britton, McGraw, Trevino, and Shapiro. See Dkt. #60-1 at 15 (Parks-Sneed notified Leos of the band racial language incident, who in turn notified Britton).
Viewing the evidence in the light most favorable to Plaintiff, Parks-Sneed's contacts with high level school officials like Robinson, Leos, and Shapiro are sufficient to satisfy the knowledge requirement. To the extent AISD argues these officials were notified too late from the date the incident occurred, this fact intensive inquiry is better left for a jury. Furthermore, a genuine fact issue exists as to whether Plaintiff's teachers were "appropriate persons" under Gebser . For these reasons, the actual knowledge requirement is satisfied at this stage of the proceedings. See Zeno v. Pine Plains Cent. Sch. Dist. , 702 F.3d 655, 667 (2d Cir. 2012) (finding the knowledge requirement met where the district's faculty and plaintiff's mother routinely reported harassment to school officials).
The parties do not dispute that the record satisfies the third element – that the school district "had control over the harasser and the environment in which the harassment occurs." Bhombal , 809 F. App'x at 237.
d. Deliberate Indifference
AISD argues that the summary judgment evidence conclusively establishes that it was not deliberately indifferent to the student-on-student harassment suffered by Plaintiff. Cf. Monteiro , 158 F.3d at 1034 ("Once on notice of the problem, a school district has a legal duty to take reasonable steps to eliminate a racially hostile environment."). Deliberate indifference "is a high bar, and neither negligence nor mere unreasonableness is enough." Sanches , 647 F.3d at 167. Rather, because school administrators require flexibility, they should be "deemed deliberately indifferent to acts of student-on-student harassment only where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances." Davis , 526 U.S. at 648, 119 S.Ct. 1661 (emphasis added); Fennell , 804 F.3d at 410. Accordingly, "courts should not second-guess [school district's] decisions." Bhombal , 809 F. App'x at 238 (citing Davis , 526 U.S. at 648, 119 S.Ct. 1661 ).
Furthermore, "[o]fficials may avoid liability under a deliberate indifference standard by responding reasonably to a risk of harm, ‘even if the harm ultimately was not averted.’ " Doe ex rel. Doe v. Dallas Indep. Sch. Dist. , 220 F.3d 380, 384 (5th Cir. 2000) (quoting Farmer v. Brennan , 511 U.S. 825, 844, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ). Similarly, "[s]chools are not required to ... accede to a parent's remedial demands." Sanches , 647 F.3d at 167-68 ; cf. id. at 170 ("Title IX does not require flawless investigations or perfect solutions"). Nonetheless, "a failure to act" in many instances is tantamount to deliberate indifference. Fennell , 804 F.3d at 411 ("Because some action was taken in an attempt to address each of these issues, these incidents do not create a genuine issue of material fact as to deliberate indifference.").
AISD argues that deliberate indifference cannot be shown because "the evidence conclusively establishes that every complaint made by [Plaintiff], Sneed, Sr., or [Parks-Sneed] ... was addressed by the District," specifically, that "every complaint made was investigated by either Leos, Robinson, or another [assistant principal]." Dkt. #60 at 28. In contrast, Plaintiff argues "there is absolutely no evidence of actual investigations of any of [Parks-Sneed's] various complaints." Dkt. #70 at 25. Alternatively, Plaintiff responds that AISD failed to reasonably respond to Plaintiff's and Parks-Sneed's complaints. Id.
Upon examining the record and given the volume of loosely organized factual allegations, the court finds that the most prudent course of action is to address each of Plaintiff's factual allegations (the incidents) in turn. First, Plaintiff contends AISD was deliberately indifferent to the frequent use of the word "nigger" by students at the High School, specifically students in the band and FFA. "It goes without saying that being called a ‘nigger’ by your white peers (or hearing that term applied to your Black classmates) exposes Black children to a ‘risk of discrimination’ that is so substantial and obvious that a failure to act can only be the result of deliberate indifference." Monteiro , 158 F.3d at 1034 (quoting City of Canton v. Harris , 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ). Plaintiff conceded that in band, her teacher, Paxton, would always at least verbally reprimand the students when he was notified that they used racial slurs around Plaintiff. See Dkt. #60-1 at 11. Moreover, Plaintiff acknowledged that Paxton's intervention would cause the racial harassment to die down for a while. Id. Although the mildness of AISD's response to band students using racial slurs may be questionable, it does not amount to deliberate indifference. See Bhombal , 809 F. App'x at 238 ("While some of the responses by school officials during the investigation may be open to criticism, we cannot say that the school's response was so unreasonable as to qualify as deliberate indifference."). However, the record is devoid of any action that AISD took in order to respond to the use of the word "nigger" by FFA students in Plaintiff's presence. Accordingly, (1) AISD's response to students using racial slurs in band does not amount to deliberate indifference, and (2) Plaintiff has raised a plausible fact issue on whether AISD was deliberately indifferent to the use of racial slurs by FFA students. Cf. Davis , 526 U.S. at 654, 119 S.Ct. 1661 (holding the plaintiff properly alleged deliberate indifference where the school district "made no effort whatsoever either to investigate or to put an end to the harassment").
While AISD contends its officials responded by holding an FFA alumni meeting, it is unclear from the record whether this meeting was prompted by, related to, or addressed the use of the word "nigger" in Plaintiff's presence on the Farm or during FFA functions. See Dkt. #60 at 7-8.
Second, Plaintiff alleges AISD was deliberately indifferent to harassment occurring during the Indianapolis band trip incident. The summary judgment evidence reflects that AISD conducted an investigation into the incident, assistant principal Britton reached out to Plaintiff, the offending student was made to apologize, and an AISD "counselor or AP" reached out to Plaintiff to discuss the incident. Dkt. #60-1 at 15, 249. Accordingly, the evidence conclusively establishes that AISD was not deliberately indifferent regarding the Indianapolis band trip incident.
Third, Plaintiff alleges AISD was deliberately indifferent to the "sass-quatch" award incident. The record is devoid of any reasonable actions taken by AISD in response to this incident. Rather, AISD contends only that this incident was not racial, an argument the court has already rejected for the purposes of AISD's Summary Judgment Motion. Dkt. #25 at 5, 25. Based on the foregoing, Plaintiff has raised a plausible fact issue on whether AISD was deliberately indifferent regarding the "sass-quatch" award incident.
Fourth, Plaintiff alleges AISD was deliberately indifferent to the racial slurs graffitied throughout the Farm and the High School. Plaintiff contends that despite the graffiti being plainly visible and coaches being placed on notice, at least some of the racial graffiti remained on the High School walls for over a year. Dkt. #60 at 25, 26. AISD appears to dispute this, arguing the graffiti "was not reported to anyone" and that no racial slurs were visible in the Farm. Id. at 4, 9. Graffitied racial slurs have a harmful effect on their recipient much like their verbal counterparts and, like their verbal counterparts, "a failure to act can only be the result of deliberate indifference." Monteiro , 158 F.3d at 1034. It is unclear from the record what actions, if any, AISD took to remedy this form of harassment. Because of this, and because racial graffiti on school property is visible to all, Plaintiff has raised a plausible fact issue on whether AISD was deliberately indifferent to the racial graffiti and carvings in the High School and the Farm.
Fifth, Plaintiff alleges AISD was deliberately indifferent to the Halloween feedbag incident. It is undisputed that AISD's staff took at least some actions in response to this incident; Stephen had the students move the rope from the feedbag's "neck" to the "head," Stephen had the students write "Boo, I'm a ghost" on the feedbag, Leos conducted an investigation into the incident, and the feedbag was eventually removed. While these actions are troubling and AISD's response to this incident appears weak, AISD's response was "not tantamount to [AISD] intentionally ‘subjecting its students to harassment.’ " Fennell , 804 F.3d at 411 (similarly finding a school district's response weak but not deliberately indifferent when a shoelace noose was placed in the plaintiff's locker and the offending student was only forced to run laps) (quoting Davis , 526 U.S. at 644, 119 S.Ct. 1661 ). The court is particularly persuaded by the fact that AISD conducted an investigation but was unable to identify the responsible students. Accordingly, AISD's actions in response to the Halloween feedbag incident do not amount to deliberate indifference.
Sixth, Plaintiff alleges AISD was deliberately indifferent to the explicit music during class incident. Dkt. #60-1 at 28-30. However, the evidence shows that Dickinson would routinely intervene and take away the speakers whenever Plaintiff informed her of the student's misbehavior. Id. Accordingly, AISD's actions in response to the music during class incident do not amount to deliberate indifference.
Seventh, Plaintiff alleges AISD was deliberately indifferent in responding to a student calling Plaintiff a "noodle nigger." Dkt. #60-1 at 31-32, 301; Dkt. #60-5 at 8. However, McGraw and Dickinson met with the offending student and his parents about the incident, threatened the student with suspension, and temporarily banned him from certain school functions and property. Id. Accordingly, AISD's actions in response to this incident do not amount to deliberate indifference.
Eighth, Plaintiff alleges AISD was deliberately indifferent in responding to the TCYS incident. Dkt. #60-1 at 47-51; Dkt. #60-3 at 9-10. AISD evicted Kylee R. from school premises as soon as they were notified of her presence. Furthermore, Robinson personally called Plaintiff to ensure she felt safe at the school function. In light of the foregoing, AISD's actions in response to this incident do not amount to deliberate indifference.
Finally, the court is unpersuaded to the extent Plaintiff alleges that AISD was deliberately indifferent in responding to the tractor incident. The precipice of this allegation is that adults not affiliated with AISD were spreading racially motivated rumors about Sneed Sr. To the extent this is a colorable claim for harassment under Title VI, Robinson and Shapiro met with the adults in question and asked them to stop spreading the rumors. See Dkt. #60-8. Accordingly, because AISD appears to have, in this instance, attempted to cure the harassment against Plaintiff despite having no control over the harassers, AISD's response to the tractor incident does not amount to deliberate indifference.
Besides these specific instances, Plaintiff generally argues that AISD failed to train its employees on discrimination and harassment, and that this failure can establish AISD's deliberate indifference. See Dkt. #70 at 29. However, the summary judgment evidence conclusively shows that AISD was not so negligent in training its staff as to amount to deliberate indifference. Superintendent Cruz, AISD's principals, and AISD's central staff "had pretty extensive training and discussions" related to "training on issues surrounding race, race relations, [and] bias." Dkt. #60-11 at 4. Cruz further elaborated that AISD's principals and vice-principals receive race-based discrimination and investigation training, as well as training on how to foster a "positive culture" that includes "cultural proficiency and inclusiveness." Id. at 9-10. Besides principal training, AISD has its principals train their staff in "all things pertaining to student safety," including training related to "discrimination based upon race or nationality." Dkt. #60-1 at 198-199; see also id. at 248, 265. Besides her conclusory assertion, Plaintiff provides no evidence that AISD's training is deficient. Accordingly, Plaintiff's deliberate indifference argument based on AISD's alleged failure to train is unpersuasive.
e. Conclusion
Because various fact issues exist concerning Plaintiff's Title VI claim, a full grant of summary judgment in favor of AISD is not warranted. See Dkt. #60. However, the summary judgment evidence shows that many of the factual allegations (the incidents) relied upon by Plaintiff, either singularly or taken together, fail to satisfy the requisite elements to support a Title VI student-on-student racial harassment claim. Accordingly, in an effort to distill Plaintiff's numerous and unorganized factual allegations down to only the relevant facts, the undersigned recommends AISD's Motion for Summary Judgment be GRANTED so far as Plaintiff's Title VI claim is based on the following factual allegations and incidents: (1) the use of racial slurs by band students; (2) the Indianapolis band trip incident; (3) the Halloween feedbag incident; (4) the music during class incident; (5) the use of the word "noodle nigger" by a student; (6) the "vape pen incident"; (7) the TCYS show incident; (8) the tractor incident; (9) the horse competition incident; (10) the FFA Officer election incident; (11) the FFA alumni organization dissolution incident; and (12) all factual allegations concerning students drinking, smoking, and setting fires at the Farm. Additionally, AISD's Motion for Summary Judgment should be GRANTED as to Plaintiff's failure to train Title VI claim.
In light of the foregoing, the incidents supporting Plaintiff's Title VI claim that survive AISD's Summary Judgment Motion should be (1) the "sass-quatch award" incident; (2) the use of racial slurs by FFA members; and (3) racial slurs graffitied throughout the High School and Farm.
2. Miscellaneous Claims
In addition to Plaintiff's primary student-on-student harassment claim, Plaintiff also argues that AISD has violated Title VI by failing to comply with its own Title VI regulations and policies, and by failing to offer Plaintiff school-based counseling. Dkt. #47 at 21-22. AISD disputes each of these contentions.
Plaintiff first argues that AISD did not comply with its own investigative and Title VI harassment policies and that such non-compliance is, at least, tantamount to evidence of deliberate indifference. See Dkt. #70 at 25. However, "a deviation from an entity's internal procedure, without more, does not show discriminatory intent or itself amount to a constitutional violation, as constitutional requirements nevertheless may have been met." Mohamed for A.M. v. Irving Indep. Sch. Dist. , 300 F. Supp. 3d 857, 896 (N.D. Tex. 2018) (citing Davis v. Scherer , 468 U.S. 183, 194, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) ); see also Z.B. v. Irving Indep. Sch. Dist. , 3:17-CV-2583-B, 2019 WL 2716504, at *6 (N.D. Tex. June 28, 2019), aff'd sub nom. Bhombal , 809 F. App'x 233. Moreover, Title VI creates a private right of action for only intentional discrimination; failure to follow regulations promulgated under Title VI by itself is not actionable. Alexander v. Sandoval , 532 U.S. 275, 293, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Accordingly, AISD's alleged failure to comply with its own policies does not create a material dispute related to deliberate indifference.
For example, Plaintiff contends that AISD did not comply with its own policy requiring that written findings be given to all parties following an investigation. See Dkt. #70 at 25.
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Lastly, Plaintiff contends that AISD violated Title VI by failing "to provide [Plaintiff] school-based counseling services." Dkt. #47 at 22. This assertion is directly contradicted by the evidence. The summary judgment evidence shows that Robinson informed Parks-Sneed that school counseling staff was available to support Plaintiff, but Plaintiff preferred to see a private therapist. Dkt. #60-1 at 52, 301; Dkt. #60-5 at 10. Thus, this argument fails.
IV. ORDER AND RECOMMENDATIONS
In light of the foregoing, the undersigned ORDERS that Camron Sneed's Opposed Motion to Supplement Plaintiff's Response to the Austin Independent School District Motion for Summary Judgment (Dkt. #71) be GRANTED.
Additionally, the undersigned RECOMMENDS that the District Court GRANT IN PART Austin Independent School District's Motion for Summary Judgment (Dkt. #60). Specifically, the undersigned recommends that AISD's Motion for Summary Judgment be granted so far as Plaintiff's Title VI claim is based on the following factual allegations and incidents: (1) the use of racial slurs by band students; (2) the Indianapolis band trip incident; (3) the Halloween feedbag incident; (4) the music during class incident; (5) the use of the word "noodle nigger" by a student; (6) the "vape pen incident"; (7) the TCYS show incident; (8) the tractor incident; (9) the horse competition incident; (10) the FFA Officer election incident; (11) the FFA alumni organization dissolution incident; and (12) all factual allegations concerning students drinking, smoking, and setting fires at the Farm. Additionally, the undersigned recommends that AISD's Motion for Summary Judgment be granted so far as Plaintiff attempts to couch her Title VI claim on AISD's alleged failure to train, failure to comply with its own policies and regulations, and failure to offer Plaintiff counseling services.
Similarly, the undersigned recommends that AISD's motion be denied so far as Plaintiff's Title VI claim is based on (1) the "sass-quatch" award incident; (2) the use of racial slurs by FFA members; and (3) racial slurs graffitied throughout the High School and Farm. Notably, per this court's recommendations, these will be the only causes of action that proceed in this lawsuit. See also Dkt. #76.
V. OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'n , 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C) ; Thomas v. Arn , 474 U.S. 140, 150-53, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; Douglass v. United Services Automobile Ass'n , 79 F.3d 1415 (5th Cir. 1996) (en banc ).
SIGNED September 11, 2020.