Bannister v. Knox Cnty. Bd. of Educ.

• Decision Date: 21 September 2022
• Docket Number: 21-5732
• Citation: 49 F.4th 1000
• Parties: Andrew Williams BANNISTER, deceased, by his Co-Administrators Ad Litem, Candace C. Bannister and Mark E. Bannister, Plaintiffs-Appellants, v. KNOX COUNTY BOARD OF EDUCATION; Knox County, Tennessee ; Knox County Tennessee Schools; Ryan J. Siebe; Kimberly H. Gray; Anthony B. Norris; Erin A. Ashe; Brian A. Hartsell, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

49 F.4th 1000

Andrew Williams BANNISTER, deceased, by his Co-Administrators Ad Litem, Candace C. Bannister and Mark E. Bannister, Plaintiffs-Appellants,
v.
KNOX COUNTY BOARD OF EDUCATION; Knox County, Tennessee ; Knox County Tennessee Schools; Ryan J. Siebe; Kimberly H. Gray; Anthony B. Norris; Erin A. Ashe; Brian A. Hartsell, Defendants-Appellees.

No. 21-5732

United States Court of Appeals, Sixth Circuit.

Argued: March 16, 2022
Decided and Filed: September 21, 2022

ARGUED: Hilary L. Magacs, TAYLOR & KNIGHT, GP, Knoxville, Tennessee, for Appellants. David M. Sanders, KNOX COUNTY LAW DEPARTMENT, Knoxville, Tennessee, for Appellees. ON BRIEF: Arthur F. Knight, III, TAYLOR & KNIGHT, GP, Knoxville, Tennessee, for Appellants. David M. Sanders, KNOX COUNTY LAW DEPARTMENT, Knoxville, Tennessee, for Appellees.

Before: SILER, LARSEN, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

During his sophomore year of high school, Andrew ("Will") Bannister tragically committed suicide. Will's parents, Candace and Mark Bannister, have sought to hold his school's administrators liable for allegedly imposing discriminatory discipline that they say led Will to take his life. For years, however, their suit has failed to make it past the pleading stage. The suit bounced back and forth between state court and federal court as their initial attorney disclaimed raising federal claims while their next attorney asserted claims under 42 U.S.C. § 1983 and Title IX of the Education Amendments Act of 1972. The

49 F.4th 1005

belated federal claims themselves have substantially evolved between the briefing in the district court (which dismissed them on statute-of-limitations grounds) and the briefing in this court. For the most part, therefore, we find that the Bannisters have forfeited their current arguments that they timely filed these claims. This case thus highlights the risks for counsel who do not develop a coherent legal theory at the outset of their case and who instead continuously adopt new arguments when problems emerge with their old ones. That approach not only delays the case's outcome for their clients but also increases the chances that their clients will lose on something other than the merits. We affirm.

I

This case reaches us from an order dismissing the Bannisters’ complaint. So we must accept the complaint's factual allegations as true (whether or not the Bannisters could prove those allegations at trial). See Rudd v. City of Norton Shores , 977 F.3d 503, 511 (6th Cir. 2020).

The Bannisters lived with Will outside Knoxville, Tennessee. Compl., R.36-1, PageID 534. In middle school, Will began to style his red hair in unique ways and to wear unique clothing. Id. , PageID 535. He started to attend Farragut High School in the fall of 2015. Id. , PageID 536. His "appearance and dress became more unique" in high school. Id. Both his style and his friendships with gay students created "a perception that he was alternatively sexually oriented." Id. , PageID 541. Will was also perceived to be affiliated "with the LGBT movement" due to his support for transgender students to use the bathrooms associated with their identified genders. Id. , PageID 542.

According to the Bannisters, high-school administrators targeted Will for discipline because of his appearance, perceived sexual orientation, and speech. Id. The Bannisters highlight two examples from Will's freshman year. In April 2016, students alerted a teacher that they saw a red-haired student with what they thought was a pill bottle. School administrators directed their suspicions toward Will. It turns out, however, that Will had a bottle of baby powder, not pills. Assistant Principal Anthony Norris suspended him for one day, even though school rules did not prohibit baby powder. Id. , PageID 538–39. A month later, a teacher left Will and other students unattended during a theater class. A yearbook staff-member invited Will and two other theater students to eat pizza. Will grabbed a pizza box, and the two other students ate the pizza. Seeing Will with the box, the yearbook teacher accused him of stealing. Norris imposed a two-day suspension on Will but did not discipline the other theater students. Id. , PageID 539–40.

The administration's alleged discrimination against Will continued into his sophomore year. In the fall of the 2016–2017 school year, Principal Ryan Siebe searched Will's locker due to what turned out to be an inaccurate "anonymous tip." Id. , PageID 543. Later in the first semester, a teacher sent Will to Principal Siebe's office for sleeping in class. Id. Although Will tried to explain that he had worked late the night before, Siebe raised concerns that Will was on illegal drugs because of his slurred, incoherent speech. Id. , PageID 543–44.

On December 8, a student reported seeing Will with pills. Id. , PageID 544. Will admitted to Principal Siebe that he had bought 30 capsules of an over-the-counter dietary supplement from another student. Id. , PageID 544–45. In response, Siebe immediately suspended Will and initiated proceedings for a long-term suspension.

49 F.4th 1006

Id. , PageID 545–46. Siebe appointed another assistant principal, Kimberly Gray, as the hearing officer for Will's suspension hearing. Id. , PageID 548. She failed to hold the hearing within five days, as required by school policy. Id. , PageID 545–46, 568. In the meantime, Will passed a drug test and the pills tested negative for illegal substances. Id. , PageID 545, 548–49. Gray nevertheless imposed a 100-day suspension on Will. Id. , PageID 549. Yet administrators did not even investigate the student who had sold him the pills. Id. Their continued singling out of Will caused him to suffer great anxiety. Id. , PageID 546, 551.

The Bannisters appealed the suspension to Brian Hartsell, the school district's "Disciplinary Hearing Authority." Id. , PageID 551. After another delay, Hartsell held the hearing in mid-January 2017. Id. , PageID 551–52. Before it began, he spoke privately ("ex parte") with Assistant Principals Norris and Gray. Id. , PageID 552–53. At the hearing, Will's attorney noted that school rules did not permit Will's long suspension for the possession of diet pills. Id. , PageID 554–55. But Hartsell later ruled that he saw no reason why the "principal's decision should be overturned." Id. , PageID 555. This ruling left Will further devastated. Id. , PageID 556.

The Bannisters next appealed to the director of schools. In February, after speaking with legal counsel, the director decided to reinstate Will immediately. Id. , PageID 556–57. The suspension had, however, already harmed Will. The school district had assigned him to an inadequate online night program. Id. , PageID 557–59. This program also had not provided a counselor who would have recognized Will's increasing anxiety and depression. Id. , PageID 558.

Will gladly returned to Farragut High School on March 20, a suitable breakpoint in the second semester. Id. , PageID 560–61. Assistant Principal Gray told the Bannisters that Will would have a "clean slate," but her promise allegedly proved illusory. Id. , PageID 560–61. On his first day back, Principal Siebe atypically showed up in two of his classes. Id. , PageID 561.

Soon after Will's return, his creative-writing teacher, Erin Ashe, asked the students to write a journal entry answering the following question: "Is Your Life A Comedy or A Tragedy?" Id. , PageID 564. According to the Bannisters, Will contemplated suicide in his journal entry:

Probably a tragedy because I have many flaws that will eventually be the end of me. The tragedy that might be the end of me, like selfishness or other things like that. Ridin round bein selfish and not thinking of others. I'm scared for myself that I might do something actually harmful for others. Shout out my boy Lil Tracy, he up next. Lil Raven also gon make it. GBC gonna take over or at least half of. I really messed up. There's no way I'm gonna finish.

Id. , PageID 583–84. Although Ashe had read and graded this assignment by April 6, nobody at the school informed the Bannisters that their son had expressed these thoughts. Id. , PageID 564.

The Bannisters thus lacked this information when they took Will to see his doctor the following week. Id. His deteriorating mental state had led them to consider whether to adjust his anti-anxiety medication. Id. , PageID 561, 564.

On April 16, Will lost points on another writing assignment because he had improperly formatted his draft. Id. , PageID 562. Yet Ashe had told the class about the correct formatting while Will had been suspended. Id. When complaining about this issue to his parents, Will expressed

49 F.4th 1007

frustration with what he perceived to be the school's discrimination and asked if they could sue. Id.

The next night, Will's father got home from work and spoke briefly with Will in their basement about his writing assignment. Id. , PageID 563. After Mr. Bannister spent a short time upstairs, he returned to the basement to ask Will a question. Id. He "found Will unconscious and bleeding on the basement floor from a self-inflicted gunshot wound." Id. Will died. Two weeks later, on April 30, the Bannisters discovered his journal entry in his backpack. Id.

On April 16, 2018, just under a year after Will's death, the Bannisters brought a state-court suit against a group of defendants that we will collectively call the "School District." The Bannisters named Knox County, the Knox County Board of Education, Knox County Schools, Siebe (the principal of Farragut High School), Gray (the assistant principal), Norris (the other assistant principal), Ashe (Will's creative-writing teacher), and Hartsell (the school district's Disciplinary Hearing Authority). They sought damages, a declaratory judgment, and injunctive relief. Their complaint alleged that the School District had denied Will "administrative due process" during his suspension proceedings. The complaint also alleged that the School District had...