Shively v. Green Local School District Board of Education

579 F. App'x 348
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 27, 2014
Docket13-3423
StatusUnpublished
Cited by26 cases

This text of 579 F. App'x 348 (Shively v. Green Local School District Board of Education) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shively v. Green Local School District Board of Education, 579 F. App'x 348 (6th Cir. 2014).

Opinions

[350]*350HELENE N. WHITE, Circuit Judge.

Defendant school officials appeal the district court’s denial of their motion to dismiss on qualified immunity and state-law immunity grounds. The district court denied qualified immunity to all Defendants on Plaintiffs’ Fourteenth Amendment substantive due process and equal protection claims on the ground that Defendants failed to prevent or respond to ongoing gender — and religious-based harassment and bullying, and denied Defendants statutory immunity from state-law claims of negligence and malicious conduct. We AFFIRM in part, REVERSE in part, and REMAND to the district court.

I.

The district court stated the following pertinent facts:

Plaintiffs Lisa and James Shively filed this action under 42 U.S.C. § 1983 in November 2011 on their own behalf, and on behalf of their minor child, T.S. The eight-count Amended Complaint ([PID 119]) seeks declaratory, injunctive, and monetary relief against the Green Local School District Board of Education (also “Board of Education” or “Defendant Board”), Michael Nutter, Wade Lucas, Cindy Brown, Mark Booth, Jeff Miller, and Jeff Wells (also collectively “individual Defendants”) for alleged violations of Plaintiffs’ civil rights. Specifically, Plaintiffs allege Defendant Board and its employees failed to prevent or respond to gender — and religion-based bullying and harassment aimed at T.S., thereby violating Plaintiffs’ constitutional rights, Title IX, and state law. Count I alleges a deprivation of Plaintiffs’ substantive due process rights under the Fourteenth Amendment. Count II alleges a deprivation of Plaintiffs’ equal protection rights under the Fourteenth Amendment. Count III is a First Amendment claim wherein Plaintiffs allege that T.S. was punished for exercising her right to identify herself as Jewish, a right Defendants failed to enforce. Count IV alleges that Defendants, by allowing religion-based bullying and harassment, violated T.S.’s right to the free exercise of her religion under the First Amendment. Count V alleges a claim under Title IX of the Civil Rights Act of 1972, 20 U.S.C. § 1681 et seq. Count VI alleges that Defendant Board’s failure to train its employees regarding bullying constitutes a violation of the Board’s obligations, resulting in liability pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 [98 S.Ct. 2018, 56 L.Ed.2d 611] (1978). Count VII alleges a negligence state law claim against the individual Defendants. Finally, Count VIII alleges a state law claim of malicious purpose, bad faith, and wanton and reckless conduct against the individual Defendants.

Shively v. Green Local Sch. Dist. Bd. of Educ., No. 5:11CV2398, 2013 WL 774643, at *1 (N.D.Ohio Feb. 28, 2013).

The Shivelys allege that T.S. is Jewish, that few Jews attend Green Local School District, PID 123, that the named Defendants are “responsible for the implementation of all official governmental laws, policies, regulations, and procedures” governing the Green Local School District, PID 121-23, and that the harassment and bullying faced by T.S. took the form of “constant name-calling, harassment based on her religion, teasing and verbal intimidation, and on several occasions, physical violence.” PID 123. The district court observed that bullying-physieal, verbal, and online-went on for several years, including:

a) Students regularly said she would “rot in Hell” because she did not believe in Jesus Christ; she was regularly called a “dirty Jew” or “Hitler;”
[351]*351b) Several times she was knocked into lockers while walking through the hallways of school;
c) She was tripped, shoved, hit, kicked, had her books knocked out of her hands on a regular basis;
d) In September, 2007, T.S. was stabbed in the leg with a pencil during class; T.S. had to be transported to an urgent-care center, where the tip of the pencil was removed from her leg with a seal-pel;
e) In April, 2008, Mrs. Shively informed Defendant Wade Lucas, then the superintendent of schools, that she would keep T.S. out of school until the bullying situation was addressed; Mrs. Shively kept T.S. out of school for one week, but eventually brought her back to school when nothing was done to address the situation;
f) In September and October, 2008, T.S. was verbally harassed on a daily basis, called “a fucking Jew” by several boys as she got on the bus; the bus driver never disciplined the boys or filed any sort of report to the school district;
g) On October 14, 2008, two boys spat on T.S. on the bus[;]
h) In November, 2009, T.S. was assaulted by a boy in the choir room at school, causing T.S. to have to be taken to the hospital and to wear crutches for several weeks. After the incident, the boy who assaulted T.S. and others continued to verbally harass and threaten T.S., telling her they would break her crutch over her head;
i) In October, 2010, several students created a Facebook page, entitled, “If you think T.S. is a whore and needs to go back to 8th grade, join!” The mother of one of the girls who created the page posted comments on the page;
j) In January, 2011, two students at Green High School created a “kill list” which included T.S.’s name as a target for being killed or hurt. While school officials assured Mrs. Shively that the perpetrators would never be able to set foot in the high school again, one of the perpetrators was seen by T.S. in the cafeteria just three weeks after the incident;
k) On August 24, 2011, the first day of the current school year, T.S. was helping with a “Club Fair,” a program meant to showcase the various clubs students can join, when students began shouting “Jew” at her from across the cafeteria;
l) On September 20, 2011, a female student approached T.S. in the cafeteria in front of other students and called T.S. a “whore,” among other names;
m) On September 30, 2011, T.S. endured an entire day of teasing and harassment from students between and during class.

Shively, 2013 WL 774643, at *1-2.

The Shivelys allege that all named Defendants knew of the ongoing harassment because of the several instances in which Lisa Shively notified school officials, police, and school guidance counselors.

The defendants knew about the harassment because plaintiff Lisa Shively, T.S.’s mother, visited, e-mailed and called whichever school T.S. was attending at the time on numerous occasions to complain about the bullying, to ask that something be done, and to warn school officials that T.S. was depressed because of the constant harassment; on several occasions, Mrs. Shively contacted law enforcement authorities, including a resource officer who worked inside the school.

PID 125-26. The Shivelys further allege:

Despite being told repeatedly about the bullying and harassment, defendants did nothing to stop or diminish the harass

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