S.B. v. Bd. of Educ. of Harford Cnty.

• Decision Date: 08 April 2016
• Docket Number: No. 15–1474.,15–1474.
• Citation: 819 F.3d 69
• Parties: S.B., a minor, by and through his Guardian and next friend, A.L.; T.L., in his own right, Plaintiffs–Appellants, and A.L., in her own right, Plaintiff, v. BOARD OF EDUCATION OF HARFORD COUNTY, Defendant–Appellee, and Dr. Robert Tomback; William Lawrence; Michael O'Brien, Defendants. Council of Parent Attorneys and Advocates, Amicus Supporting Appellants, National School Boards Association; Maryland Association of Boards of Education, Amici Supporting Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

819 F.3d 69

S.B., a minor, by and through his Guardian and next friend, A.L.; T.L., in his own right, Plaintiffs–Appellants,

and

A.L., in her own right, Plaintiff,

v.BOARD OF EDUCATION OF HARFORD COUNTY, Defendant–Appellee,andDr. Robert Tomback; William Lawrence; Michael O'Brien, Defendants.

Council of Parent Attorneys and Advocates, Amicus Supporting Appellants,

National School Boards Association; Maryland Association of Boards of Education, Amici Supporting Appellee.

No. 15–1474.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 27, 2016.

Decided: April 8, 2016.

ARGUED:Martin Jay Cirkiel, Cirkiel & Associates, P.C., Round Rock, Texas; Tracy Diana Rezvani, Rezvani Volin P.C., Washington, D.C., for Appellants. Andrew G. Scott, Pessin Katz Law, P.A., Towson, Maryland, for Appellee. ON BRIEF:Edmund J. O'Meally, Pessin Katz Law, P.A., Towson, Maryland, for Appellee. Selene Almazan–Altobelli, Council of Parent Attorneys and Advocates, Inc., Towson, Maryland; Mark B. Martin, Law Offices of Mark B. Martin, P.A., Baltimore, Maryland, for Amicus Council of Parent Attorneys and Advocates. Francisco M. Negrón, Jr., General Counsel, National School Boards Association, Alexandria, Virginia, for Amici National School Boards Association and Maryland Association of Boards of Education.

Before WYNN and HARRIS, Circuit Judges, and LORETTA C. BIGGS, United States District Judge for the Middle District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge HARRIS

wrote the opinion, in which Judge WYNN and Judge BIGGS joined.

PAMELA HARRIS

, Circuit Judge:

This case arises from the student-on-student bullying and harassment of S.B., a disabled student who attended Aberdeen High School in Harford County, Maryland. S.B., by and through his mother, A.L., sued the Harford County Board of Education (the "Board"), alleging primarily that by allowing other students to harass S.B. based on his disability, the Board violated § 504 of the Rehabilitation Act. S.B.'s stepfather, T.L., a teacher and athletic director at Aberdeen High School, sued in his own right, claiming that the Board also violated § 504 by retaliating against him for advocating on S.B.'s behalf.¹

After extensive discovery, the district court granted summary judgment to the Board, holding that there was no record evidence to support either S.B.'s or T.L.'s claims. And while we sympathize with students and parents who face school bullying issues, we agree. S.B. has provided no evidence that the Board acted with the deliberate indifference necessary to hold it liable for student-on-student harassment. Nor does the record substantiate T.L.'s allegation of a causal connection between his advocacy for S.B. and any adverse action taken by the Board. Accordingly, we affirm the judgment of the district court.

I.

A.

In reviewing the district court's grant of summary judgment to the Board, we present the facts of the case in the light most favorable to S.B. and T.L., the non-moving parties. See Blake v. Ross, 787 F.3d 693, 695 (4th Cir.2015)

.

S.B. was a student with disabilities such as Attention Deficit Hyperactivity Disorder

, weak visual-spatial ability, and a nonverbal learning disability.² There is no question but that his years at Aberdeen High School, which he entered in the fall of 2010, were difficult ones. S.B.'s fellow students often bullied him, sometimes severely. Some of S.B.'s classmates insulted him using homophobic slurs. Others sexually harassed or physically threatened him. And S.B. faced—and sometimes contributed to—racial tensions with his classmates; in one significant episode, S.B. responded to three black students who had been calling him names with a racial epithet and made other threatening remarks.

S.B. or his parents reported most of these incidents to the school, and the school, in turn, investigated each reported incident. In almost every case, the school disciplined the offenders, using measures such as student warnings and conferences, parent phone calls, detentions, and suspensions. From January 2013 to June 2013, the school also assigned a school-employed paraeducator to follow S.B. during the school day, monitoring his safety and acting as an objective witness to any alleged acts of bullying.

S.B.'s parents were very concerned about the bullying issues S.B. was confronting at school. Both had close connections to Aberdeen High School: S.B.'s mother A.L. was a substitute teacher, and T.L., as noted above, was the school's athletic director and a physical education teacher. A.L. frequently emailed school principal Michael O'Brien about the bullying of S.B., and O'Brien consistently responded, though not always to A.L.'s satisfaction.

Eventually, both A.L. and T.L. began publicly criticizing and questioning the school's efforts to prevent the harassment of their son. For instance, in November 2012, A.L. posted her email conversation with O'Brien on Facebook in order to publicize her complaints. In the same month, both parents attended a hearing on whether the school should have suspended S.B. for using a racial epithet. In April 2013, A.L. and T.L., along with S.B., filed the original complaint in this action. And after filing this suit, T.L. raised concerns at an October 2013 parents' forum about the lack of harassment reporting forms available at the high school.

At around the same time, the school took several actions with respect to T.L. that figure in T.L.'s retaliation claim. In November 2012, O'Brien denied T.L. the opportunity to complete a practicum for his master's degree program on-site at Aberdeen High School. As a result, T.L. instead completed the practicum at the school district's central office, working under the district's athletic supervisor. In the spring of 2013, the school failed to give T.L. tickets to a scholarship banquet for student-athletes. And in April 2013, O'Brien informed T.L. that T.L. would not be teaching the school's summer physical education class that year, though he had taught it for the three previous years.

Just over a year later, in June 2014, S.B. graduated on time from Aberdeen High School. During high school, S.B. consistently achieved passing grades, and in fall 2014, he began taking classes at Harford Community College.

B.

In their amended complaint against the Board, filed in July 2013, S.B. and his parents alleged violations of § 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq.

; Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; and 42 U.S.C. §§ 1983 and 1985. The gist of all of those claims was that the defendants had discriminated against S.B. based on his disability, primarily by failing to prevent student-on-student bullying and harassment, and retaliated against S.B.'s parents when they sought to remedy that discrimination.

The focus of the case was narrowed in the district court. First, in September 2013, the district court granted in part the Board's motion to dismiss, dismissing from the suit all individual defendants and S.B.'s claims under §§ 1983

and 1985. Subsequently, A.L. voluntarily dismissed her retaliation claims. That left the claims that are before us now: S.B.'s claim of disability-based discrimination under § 504 and the ADA, and T.L.'s claim of retaliation under § 504.

The district court denied the Board's motion to dismiss on those claims, allowing the parties to move forward to discovery. But the court was skeptical that the claims could succeed, expressing doubt that S.B. could establish that the Board had discriminated against him by acting with "deliberate indifference" to student-on-student bullying, or that T.L. could show that the Board had retaliated against him because of his advocacy on behalf of S.B. Memo to Counsel, S.B. v. Bd. of Educ. of Harford Cty., No. 1:13–cv–1068–JFM, ECF. No. 35 (D.Md. Sept. 30, 2013); J.A. 114.

After substantial discovery, in April 2015 the district court granted summary judgment to the Board. According to the district court, its initial skepticism "proved to be well-founded." S.B. v. Bd. of Educ. of Harford Cty., 1:13–cv–1068–JFM, slip op. at 1 (D.Md. Apr. 17, 2015) ("District Court Decision"); J.A. 2389. The court observed that "[d]espite the extensive discovery that has been taken and the voluminous papers that have been filed, it is now clear that the action is a frivolous one." Id. at 1–2.

Specifically, regarding S.B.'s claim of disability-based discrimination, the district court first found that "it is not at all clear that any harassment directed toward [S.B.] was on account of his disability." Id. at 2. But the district court rested its decision on a different ground: that there was "absolutely no evidence" in the record that the Board had discriminated against S.B. by acting with "bad faith, gross misjudgment or deliberate indifference in responding to" student-on-student harassment. Id. Instead, the record showed that the "Board investigated every harassment claim against S.B. brought to its attention and assigned a person to be with S.B. throughout the school." Id. As to T.L.'s retaliation claim, the district court concluded that there was "no evidence whatsoever" of a causal link between T.L.'s advocacy of S.B.'s rights and any action taken by the Board. Id.

S.B. and T.L. timely appealed the district court's judgment.

II.

We review the district court's grant of summary judgment de novo. Summary judgment is appropriate "when ‘there is no genuine dispute as to any material fact and the movant is entitled to [ ] judgment as a matter of law.’ " Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir.2013)

(quoting Fed.R.Civ.P. 56(a) ). We view the facts in the light most favorable to S.B. and T.L. as the non-moving parties and draw all reasonable inferences in their favor. Blake, 787 F.3d at 695. But if "no reasonable jury could find for the nonmoving party on the evidence before it," then we will affirm the grant of summary judgment. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th...