S.A. v. Bd. of Educ. of Perry Cnty.

692 F.Supp.3d 712

S.A., a minor BY AND THROUGH her parents and Next Friends, W.A. and L.A., Plaintiff, v. BOARD OF EDUCATION OF PERRY COUNTY, KENTUCKY, et al., Defendants.

Civil Action No. 6:21-CV-149-CHB

United States District Court, E.D. Kentucky, Southern Division. (at London)

Signed September 15, 2023

Edward E. Dove, Dove Law, Lexington, KY, for Plaintiff.

Christopher S. Turner, Barbara A. Kriz, Kriz, Jenkins, Prewitt & Jones, PSC, Lexington, KY, Jonathan C. Shaw, Porter Banks Baldwin & Shaw, Paintsville, KY, for Defendants.

MEMORANDUM OPINION AND ORDER

CLARIA HORN BOOM, UNITED STATES DISTRICT COURT JUDGE

This matter is before the Court on the Motion for Summary Judgment filed by the Defendants.¹ [R. 25]. Plaintiff S.A., a minor, by and through her parents and next friends, W.A. and L.A., responded, and the Defendants replied. [R. 28; R. 29]. The matter is ripe for review. For the reasons that follow, the Defendants' motion will be GRANTED in part and DENIED in part.

I. Background

S.A. filed her Complaint in this action on August 30, 2021. [R. 1]. The facts discussed below are primarily drawn from the depositions of S.A. [R. 25-2] and her mother, L.A. [R. 25-3].

At the time her Complaint was filed, S.A. was a 12-year-old student. [R. 1, p. 2 ¶ 6]. S.A.'s deposition was taken in June 2022. See [R. 25-2, p. 2]. During her deposition, S.A. testified that she had attended R.W. Combs Elementary since before kindergarten through sixth grade, which she completed in the spring of 2021.² Id. at 11-12.³ While S.A. was a student at the school, she was bullied. Id. at 22:6 ("They would call me names and wouldn't leave me alone and just --."). S.A. is biracial, but said she never told anyone that her biological father was from Mexico, so "[p]retty much" the only way L.G., the student who bullied her, knew anything about her connection to Mexico was because S.A. had curly hair. Id. at 85:8.

According to S.A., the bullying began when she was ten years old, toward the end of her fifth grade year, when L.G., a classmate whom she had attended school with together for years, told her "to shut up and go back to Mexico where [she's] from" and that nobody wanted to hear her talk. Id. at 7, 22:22-23, 24:14-24. This incident happened outside at recess and made S.A. cry. Id. at 22-28. Ms. Dunn, a teacher, noticed S.A. was crying and asked S.A. to tell her what happened with L.G. Id. at 26. Ms. Dunn also talked to L.G. about the incident. Id. at 28. Thereafter, Ms. Dunn sent L.G. to the principal's office. Id. at 27. The following day, L.G. told S.A. that he did not get into any trouble. Id. at 28. Importantly, and according to S.A., this was the sole time—her report to Ms. Dunn at the end of fifth grade—that she ever reported L.G.'s bullying to school officials, explaining that she was embarrassed. Id. at 41:15-18, 44:14-22, 46:11-13.

A week after the fifth grade incident, L.G. called S.A. names in class like "ugly, stupid, fat," id. at 28:19-29:1, but S.A. did not report L.G.'s behavior to her teacher, id. at 29:18-19. S.A. testified that L.G. also bullied other students and that those students would, on occasion, report the name-calling to their math teacher, Ms. Watts. Id. at 29:15-30:19. In response to the other students' reports, Ms. Watts told L.G. to stop. Id. at 30:17. However, S.A. said teachers' comments had no effect on L.G. Id. at 32:23-33:1. When asked whether the teachers ever heard L. G. call her names, S.A. testified, "I don't think so." Id. at 34:12-14.

The next year, in sixth grade, L.G. continued to call S.A. names, including "beaner," but she did not report it. Id. at 44:8-10. S.A. testified she once tried to report the name-calling to Ms. Watts. Id. at 33-37. On that occasion, L.G. called S.A. a "border hopper" and called her friend M. a "whore." Id. at 33-35. M. asked S.A. to go with her to speak with Ms. Watts (apparently because S.A. was a witness). Id. at 34-36. Although S.A. planned to tell Ms. Watts about L.G. calling her a "border hopper," S.A. says she did not get the chance. Id. at 36. Instead, when she got to Ms. Watts, Ms. Watts responded, "What does this got to do with you?"; Ms. Watts then told S.A. to "[j]ust go on." Id. at 35:22-23, 36:15-16. Here, S.A. testified that Ms. Watts "didn't give [her] the chance to" tell Ms. Watts that L.G. had called her a border hopper and beaner. Id. at 36:7, 36:22-23 ("She said it was none of my business and told me to go play."). S.A. was further questioned:

Q: When she said, "It's none of your business," you didn't say, "but he's been calling me names too?"

A: No.

Id. at 36:24-37:1. S.A. never told Ms. Watts about this incident. Id. at 44:8-10 ("Q: Did you ever report [the incident] to either Ms. Estep or Ms. Watts? A: No"). She never told her parents either. Id. at 72:17-24. Ms. Watts did, however, speak with M., but S.A. was unsure whether they discussed L.G.'s name-calling of S.A. Id. at 43:17-19. The next day, L.G. called S.A. names again. Id. at 43:22. S.A. did not report L.G.'s behavior and instead walked away. Id. at 44:4.

Sometimes, L.G. would call S.A. names outside of school. Id. at 39-40. For example, S.A. and L.G. played games on Xbox. Id. at 39. During these games, L.G. would call S.A. names, leading S.A. to turn off her Xbox and not interact with L.G. Id. at 40. He would also call her names on Snapchat. Id. at 46. S.A. testified that she had called L.G. "stupid" while on Xbox, sometimes in a joking manner and sometimes when she was upset with him. Id. at 40:15-41:1. However, S.A. never showed any adults the names that L.G. had called her on Xbox or Snapchat. See, e.g., id. at 41:15-18, 40:5-9 ("Q. Did you tell your parents? A. No. Q. Why Not? A. Because I considered him my friend at the time."). In their depositions, S.A. and L.A. were separately asked about any whether any such messages remained on S.A.'s phone. S.A. testified her phone was unavailable because she dropped it off the front porch and it broke. Id. at 45, 82-83. L.A. testified that many messages had been deleted and that S.A's phone was unavailable because she dropped it in the lake, specifically S.A. had it in her pocket while jet skiing and it fell in the lake. [R. 25-3, pp. 150-51].

S.A. testified that L.G. would call her a border hopper or beaner every day during sixth grade. See [R. 25-2, p. 44]. S.A. repeatedly testified, however, that she did not tell any adult at school or her parents about L.G.'s bullying during sixth grade, including his bullying that occurred in person or via Xbox or Snapchat:

Q: When you would go back to school after the times that L.[G.] would call you names on Xbox, would you report that to any adult at the school?

A: No.

Id. at 41:15-18.

Q: And at any time during the sixth grade year, did you ever go to anyone and report it at school?

A: No.

Q. What about to your parents, did you go home and tell your parents that [L.G.] was calling you a beaner and border hopper every day?

A. No.

Q: Why not?

A: I was embarrassed.

Id. at 44:14-22.

Q: And did you ever show any adult the names that L.[G.] called you on either Xbox or Snapchat?

A: No.

Id. at 46:11-13.

S.A. also testified that, during her fifth and sixth grade years at R.W. Combs Elementary, Principal Baker would come to her classroom to talk about bullying and the school's anti-bullying policy. Id. at 30:24-31:21. However, S.A. said she never told Principal Baker about L.G.'s bullying, and she similarly testified that she did not know Superintendent Jett and never reported anything to him related to L.G.:

Q: Do you know --have any --do you know Jonathan Jett, the Superintendent?

A: No.

Q: Did you ever have any discussions with him, about what was happening with you?

A: No.

Q: Did you ever report to him, anything related to L.G.?

A: No.

Q: Did you ever report directly to Mr. Baker, anything about L.G.?

A: No.

Q: So the only one, that you would've told anything to, about L.G., would've been Ms. Watts?

A: Yes.⁴

Q: And that was on one occasion, when you went to her about M being called a whore?

A: Yes.

Id. at 77:15-78:7.

As a result of L.G.'s bullying, S.A. began to harm herself in fifth grade. See, e.g. id. at 47-48. S.A. testified that she would cut herself once or twice a week the whole time she was in the sixth grade, but her goal was not to kill herself. Id. at 47-50. She did not tell her parents or anyone at school that she was upset enough to harm herself, and she would hide the marks on her arms from her parents by covering them up. Id. at 49. S.A. did tell a cousin about the self-harm. Id. at 51-52.

S.A. testified that she recalled L.G. calling her names and mistreating her online and in person in May 2021. Id. at 70. Tragically, on May 12, 2021, S.A. attempted suicide by taking some of her mother's muscle relaxers. Id. at 63-65. S.A. testified that she had faked going to school that day because Ms. Watts had screamed at her class a few days prior that she was tired about kids' parents calling her because they were being picked on. Id. at 56-57. S.A. felt Ms. Watts's comments were "[i]n a way" directed at her, even though her parents had not contacted Ms. Watts. Id. at 57:18-20.

Regarding her suicide attempt, S.A. testified that she remembered taking the pills and "[l]aying down," but she did not remember being taken to the emergency room at the hospital in Hazard. Id. at 67:5. She did remember being in the intensive care unit at the University of Kentucky before being transferred to Good Samaritan Hospital, where she received mental health treatment. Id. at 67. While at Good Samaritan, S.A. told her therapist that she had taken the pills because she "was being bullied pretty bad." Id. at 68:12.

After S.A. was discharged from the hospital, she returned to R.W. Combs Elementary for end-of-year testing. Id. at 69. She took the tests in Principal Baker's office, but did not talk with him about what had happened with L.G. Id. That summer, she decided to transfer schools to Hazard Independent Middle School. Id. at 70. S.A. and her...