Doe v. Fulton Cnty. Sch. Dist.

JANE DOE, by and through parent and next friend JANE ROE, Plaintiff, v. FULTON COUNTY SCHOOL DISTRICT, Defendant.

CIVIL ACTION NO. 1:20-cv-00975-AT

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

March 23, 2021

OPINION AND ORDER

This matter is before the Court on Defendant Fulton County School District's Motion to Dismiss the Plaintiff's First Amended Complaint. [Motion, Doc. 23.] For the following reasons, the Motion is GRANTED in part and DENIED in part.

I. Procedural History

Plaintiff ("Jane Doe") filed her Complaint through her parent ("Jane Roe") on March 3, 2020. (Doc. 1.) On May 4, 2020, Defendant filed a Motion to Dismiss. (Doc. 17.) On June 1, 2020, Plaintiff filed a First Amended Complaint, rendering that motion moot. (First Amended Complaint ("FAC"), Doc. 21.) On June 15, 2020, Defendant Fulton County School District ("FCSD") filed the instant Motion to Dismiss the First Amended Complaint. (Motion, Doc. 23.) Plaintiff timely responded in opposition. (Doc. 24.) On July 7, 2020, the United States of America filed a Statement of Interest, opposing dismissal of the case for various reasons discussed infra. (Statement of Interest, Doc. 26.) On July 23, 2020, the Defendant replied in support of its motion, addressing arguments made in both the Plaintiff's Response and the Government's Statement of Interest. (Reply, Doc. 30.)

A. First Amended Complaint

At the time that Plaintiff, "Doe"¹ filed her Complaint, she was fourteen years old and suffered "from physical and mental disabilities." (First Amended Complaint, Doc. 21 at 2.) Doe alleges that she has been disabled since birth, and that due to her "neurodevelopmental disabilities" she "functions at a cognitive and communicative level far below her actual." (FAC, Doc. 21 at 4-5.) Accordingly, Doe alleges that she "has been diagnosed and classified as an eligible student with intellectual disabilities under the Individuals with Disabilities Education Act ("IDEA")." (Id. at 5.) Doe alleges that she is a "special needs student enrolled at a Middle School operated by [Defendant,] FCSD." (Id. at 2.) Doe alleges that because of her "cognitive disabilities, [she] is unable to verbally communicate effectively with her caregivers and educators at FCSD. As part of her [Individualized Education Plan], FCSD was required to provide Doe with an electronic iPad tablet to allow her to communicate with her caregivers and educators at FCSD." (Doc. 21 at 5.)

Doe alleges that she "is dependent on school-provided public transportation to and from ... her Middle School. She is transported to Middle School via a special needs specific school bus that is owned, operated and maintained by FCSD." (Doc. 21 at 6 (parenthetical omitted).) The bus is "specifically designed for special needs students[,]" and "contains 3-4 rows of benches for students to sit on and an open area where the benches have been removed in order to accommodate and secure wheelchairs." (Doc. 21 at 6.) The complaint allegations indicate that the bus driver is provided a broad visual view the interior of the bus by a wide-view safety mirror. (Id.) The bus also "was equipped with electronic safety monitors so the Bus driver could monitor all passengers and ensure they remained seated at all times during the drive to and from school." (Id.) In addition, the bus was "equipped with audio and video monitoring equipment that recorded all the events that occurred on the Bus on a daily basis" and that could be daily accessed and reviewed. (Id. at 7.)

Doe alleges that prior to the incidents at the heart of this case, the bus was "staffed by both an FCSD employee driver and an FCSD employee Monitor." (Doc. 21 at 6-7.) Doe alleges that the Monitor was on the bus "specifically due to [Doe's] severe communication and cognitive deficiencies." (Doc. 21 at 7.) However, Doe alleges that at some point, FCSD decided to remove the Monitor and proceed with only a Driver on the bus for financial reasons. (Id.) Doe alleges that the Driver pursuant to FCSD policies had "an express obligation to prevent, correct, and protect a passenger student from any act of discrimination, harassment, physical altercations, and sexual abuse that occurred on the Bus." (Id. at 8.)

Doe alleges that between April 4, 2019 and April 20, 2019, she was repeatedly sexually assaulted by two other students on the bus. (FAC, Doc. 21 at 9-12.) According to the FAC, the assaults began on April 4th with Student A groping and attempting to kiss Doe's breasts through her shirt, followed by Student B - "[e]mboldened by the lack of discipline and restraint for Student A" - doing the same. (FAC, Doc. 21 at 9.) Doe alleges that the following day, Student B "fully exposed his penis and forced Doe to touch it while he grabbed her breasts and put his mouth on her breasts." (Id. at 10.) On April 11, 2019, Student B allegedly removed Doe's shirt and fondled her breasts while he masturbated in front of her. (Id.) On April 15, Student B allegedly forced Doe to "touch his penis over his clothing and masturbate him while they were on the Bus." (Id.)

Student B allegedly continued his assaults on Doe on a daily basis, including removing her shirt, taking his own penis out and making Doe fondle him, and attempting to force Doe to perform oral sex on him. (Id. at 10-11.) On April 18, 2019, Student B allegedly "removed all of [Doe's] clothing and tried to climb on top of her. Student B then performed oral sex on Doe[, and] then masturbated while sitting next to Doe." (Id. at 11.) The next day, Student B again allegedly tried to force Doe to perform oral sex on him and fondled her breasts. (Id.)

Doe alleges that after "more than two weeks of near daily sexual abuse, the sexual assaults against Doe culminated on April 20, 2019." (FAC, Doc. 21 at 11.) On this day, Student B allegedly slapped Doe's exposed breasts, then removed all of his own clothing, and all of Doe's clothing. (Id.) He then allegedly performed oralsex on Doe and then "physically placed Doe on top of him and he vaginally penetrated her with his penis forcing sexual intercourse." (Doc. 21 at 11.)

Doe alleges that it was only after this incident that the Bus driver "vaguely mentioned to another FCSD employee that he had 'noticed something' on his last route." (Doc. 21 at 12.) Doe alleges that an FCSD employee told Roe that the driver reported "'something' that perhaps involved physical contract," and that Roe then took Doe to a medical facility where "treating physicians confirmed vaginal penetration consistent with rape." (Id.)

Doe alleges that the "multiple acts of sexual assault and rape over a period of almost two weeks could not have taken place without the knowledge and/or deliberate indifference of the Bus driver, who never once intervened to protect Doe and report Students A and B to FCSD and the police." (Doc. 21 at 12.)

Doe further alleges that Students A and B "had exhibited dangerous behaviors in the past[,]" and that these behaviors "were known to FCSD." (FAC, Doc. 21 at 12.) Doe alleges that, despite this knowledge, FCSD chose to remove the Monitor from the bus. (Id.) Doe construes the decision to remove the Monitor from the bus as showing "reckless disregard for the safety of Doe as there was no one to stop the sexual abuse and assault that Doe repeatedly suffered[.]" (Doc. 21 at 13.) Doe also alleges that during the time period in which the assaults occurred, "FCSD was aware that Doe's electronic iPad tablet was not functioning[,]" and that "[w]ithout her tablet, Doe could not communicate the vicious assaults that were being perpetrated against her on a daily basis." (Doc. 21 at 13.) Doe alleges that it"was only after the seventeen-day long series of sexual assaults culminating in rape that FCSD replaced Doe's iPad tablet." (Doc. 21 at 13.) Doe also alleges that after the bus driver's report of seeing "something," FCSD "reversed its decision to remove the Monitor and placed one back on the Bus." (Id. at 13.)

Plaintiff brings discrimination claims under Title II of the ADA (42 U.S.C. § 12132), Section 504 of the Rehabilitation Act (29 U.S.C. § 794(a), Title IX, as well as claims under the Georgia Open Records Act² (O.C.G.A. § 50-18-71(b)).

B. Motion to Dismiss

Defendant, FCSD, moves to dismiss all counts in the First Amended Complaint. (Motion, Doc. 23.) FCSD argues that the bus driver is not a "FCSD official with substantial supervisory authority," and that the Driver's alleged indifference to the sexual assaults does not impart liability on FCSD. (Motion, Doc. 23-1 at 2.) FCSD claims in the motion that Plaintiff's claims under the ADA, Section 504, and Title IX are invalid because "Plaintiff cannot hold FCSD vicariously liable for the alleged acts or omissions of the bus driver." (Doc. 23-1 at 7.) As for the Open Records Act claim, FCSD contends that the bus video "is not subject to disclosure [under the Georgia Open Records Act] because it contains federally protected, confidential student information and depicts child pornography." (Doc. 23-1 at 22.) FCSD argues that it cannot disclose the video without a Court Order to do so, or else FCSD would be exposed to criminal liability. (Doc. 23-1 at 23.)

C. Response and Statement of Interest

In her Response to the Motion, Plaintiff stresses that "[u]nlike the cases relied on by [FCSD], this was no 'one-off' incident randomly witnessed by a school janitor after school or a teacher acting as a chaperone at a school dance outside of normal hours. It was serial abuse Doe contends was intentionally ignored by the official whose job mandated that he put a stop to it." (Response, Doc. 24 at 2.) Doe states that "the special needs bus driver in question violated virtually every required component of his state mandated job description" by never intervening to stop the course of physical harassment that was evident. (Doc. 24 at 7.) Doe asserts that FCSD denied Doe the benefits of safe and appropriate non-discriminatory transportation,...