Sturdivant v. Fine

22 F.4th 930

Camille STURDIVANT, Plaintiff - Appellee,

v. Carley FINE, Defendant - Appellant,andBlue Valley Unified School District, USD 229; Amy Pressly, Defendants.

No. 20-3147

United States Court of Appeals, Tenth Circuit.

FILED January 7, 2022

Gregory P. Goheen, McAnany, Van Cleave & Phillips, P.A., Kansas City, Kansas, on behalf of the Defendant-Appellant.

Marie L. Gockel (Lynne Jaben Bratcher and Erin Vernon with her on the brief), Bratcher Gockel Law, L.C., Independence, Missouri, on behalf of the Plaintiff-Appellee.

Before MATHESON, BACHARACH, and CARSON, Circuit Judges.

BACHARACH, Circuit Judge.

Ms. Camille Sturdivant¹ sued her former coach on a high school dance team, Ms. Carley Fine, invoking 42 U.S.C. § 1983 and alleging race discrimination in violation of the Fourteenth Amendment's Equal Protection Clause.² See 42 U.S.C. § 1983 ; U.S. Const. amend. XIV. Ms. Fine moved for summary judgment, urging qualified immunity based on the absence of

• an act under color of state law and

• a denial of equal protection.

The district court denied the motion, concluding that a reasonable factfinder could infer that Ms. Fine had acted as head coach and "intentionally deprived [Camille] of educational benefits based on [her] race." Appellant's App'x at 319. Ms. Fine appealed.

Ms. Fine presents two alternative arguments for qualified immunity:

1. She did not act under color of state law because she was no longer employed as the head coach when she allegedly violated Camille's rights.

2. She did not violate a clearly established constitutional right.

We lack jurisdiction to consider Ms. Fine's first argument (that she did not act under color of state law). Our jurisdiction in this interlocutory appeal does not extend to the applicability of § 1983. We thus dismiss this portion of the appeal.

We do have jurisdiction to consider Ms. Fine's second argument (that she didn't violate a clearly established right). But a reasonable factfinder could find the violation of a clearly established right to equal protection. So we affirm the district court's denial of summary judgment based on qualified immunity.

I. Ms. Fine uses a racial slur when texting about Camille.

Camille, an African-American student, participated in the Dazzlers dance team at her high school. The head coach was Ms. Fine.

In her senior year of high school, Camille earned a spot on a major university's elite dance team. Another girl (Maggie) didn't make the team. When Ms. Fine learned the results, she texted the Dazzlers’ choreographer, attributing Camille's success to her race:

Choreographer: i can't believe maggie didn't make it again

i'm heart broken

Ms. Fine: I KNOW

AND CAMILLE MADE [THE TEAM]

I can't talk about it

Choreographer: THAT DOESNT MAKE SENSE

i'm so mad

Ms. Fine: It actually makes my stomach

Hurt

Bc she's f*****g black

I hate that

Id. at 154, 227 (capitalization in original).

During a later dance practice, Camille scanned Ms. Fine's text messages, trying to find music for a dance routine. While scanning the texts, Camille spotted Ms. Fine's exchange with the choreographer. Camille photographed the texts and shared them with her parents, who complained to the principal.

II. Ms. Fine loses her title as the Dazzlers’ head coach.

The next day, the school's principal and director of human resources told Ms. Fine that

• she was no longer the dance coach and couldn't participate in any upcoming dance team activities, including the school's final Spring Show, and

• she had fulfilled her contract with the school.

The contract lasted another ten days, and Ms. Fine obtained payment for these days.

The principal announced to the team that Ms. Fine would no longer serve as the head coach and arranged for two other faculty members to fill in. But the evidence suggests that these faculty members never assumed the head coach's duties.

III. Ms. Fine texts a Dazzler, telling her to boycott Camille.

After the principal's announcement to the team, Ms. Fine received a text from her younger sister, who was also on the dance team. The text related to a tradition for team members to present seniors with flowers.

Because Camille was the only senior on the team, she'd expect flowers after the Spring Show. Flouting this tradition, Ms. Fine told her sister to arrange a boycott:

Sister: Originally Camille asked me to give her flowers

But I'm not gonna anymore

Ms. Fine: Noooooooo your joking?!?!?

Did she unask you

Sister: I mean no

She never said anything

But like I feel like she honestly thinks I'm doing it still but I'm not

Ms. Fine: You can't

Get everyone to boycot[t]

Id. at 238.

IV. The Dazzlers exclude Camille and attend off-campus events with Ms. Fine.

The next night marked the start of the Dazzlers’ Spring Show. By tradition, Ms. Fine would give an inspirational talk before the show. The parents arranged for all the Dazzlers—except Camille—to meet at a team member's home. Ms. Fine attended and gave the team a "pep talk."

The team then conducted its Spring Show on two straight nights. On the second night, all the Dazzlers—except Camille—wore ribbons with Ms. Fine's initials and took team photos. The other Dazzlers also shunned the tradition of presenting flowers to the only senior on the squad (Camille). Throughout the Spring Show, virtually every member of the dance team ignored Camille. The sole exception was the team's only other African-American member.

The next week, all the Dazzlers were supposed to sit together in their first-hour class. But at the request of Camille's mother, the principal excused Camille from attending the first-hour class for the final four days.

Camille was also excluded from the team banquet. Parents of the team members cancelled the banquet, but then arranged a team banquet away from the campus. Camille was the only Dazzler excluded.

V. We lack jurisdiction to consider Ms. Fine's denial of action under color of state law.

Ms. Fine denies employment as the coach when the boycott took place, arguing that her conduct as a private individual didn't constitute an act under color of state law. Action under color of state law is an element of § 1983. Schaffer v. Salt Lake City Corp. , 814 F.3d 1151, 1155 (10th Cir. 2016). But in this interlocutory appeal, we have jurisdiction only to consider the district court's denial of qualified immunity. See Mitchell v. Forsyth , 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). And a challenge to the elements of § 1983 does not involve qualified immunity. So we dismiss Ms. Fine's argument that she was not acting under color of state law.

Qualified immunity protects public officials from liability for violating statutory or constitutional rights that are not clearly established. See Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The doctrine ensures that officials may incur liability only upon fair notice that their conduct is unlawful. Hope v. Pelzer , 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

The first step in qualified immunity is to determine whether someone could reasonably find a constitutional violation. See Brown v. Flowers , 974 F.3d 1178, 1182 (10th Cir. 2020). For this step, Camille alleges denial of her right to equal protection under the Fourteenth Amendment.

Ms. Fine argues that no reasonable jury could find a violation of Camille's constitutional rights because she did not act under color of state law. But action under color of state law is an element of § 1983, not the Fourteenth Amendment's Equal Protection Clause. See, e.g. , Am. Mfrs. Mut. Ins. Co. v. Sullivan , 526 U.S. 40, 49–50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999).

Unlike the Constitution, "[§ 1983] is not itself a source of substantive rights." Sawyers v. Norton , 962 F.3d 1270, 1282 (10th Cir. 2020) (quoting Margheim v. Buljko , 855 F.3d 1077, 1084 (10th Cir. 2017) ).³ Section 1983 serves instead only as a vehicle to "provide[ ] relief against those who, acting under color of law, violate federal rights created elsewhere." Brown v. Buhman , 822 F.3d 1151, 1161 n.9 (10th Cir. 2016) (quoting Reynolds v. Sch. Dist. No. 1, Denver, Colo. , 69 F.3d 1523, 1536 (10th Cir. 1995) ).⁴

Our review here is limited to qualified immunity, which focuses on whether Ms. Fine violated Camille's right to equal protection. We lack jurisdiction to address whether Camille can use § 1983 as a statutory vehicle to obtain a remedy. This part of the appeal thus falls outside our jurisdiction.

VI. Ms. Fine wasn't entitled to qualified immunity based on her denial of discrimination to withhold an educational benefit.

Although we lack jurisdiction to consider Ms. Fine's denial of action under color of state law, she also insists that she didn't discriminate against Camille or deny her an educational benefit. We have jurisdiction over this part of the appeal. See Mitchell v. Forsyth , 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Though jurisdiction exists, we affirm the district court's denial of qualified immunity.

A. Camille's evidence reflected a denial of equal protection.

The threshold issue is the existence of a constitutional violation. See p. 935, above. For this issue, the parties agree that Camille must prove that Ms. Fine

• treated Camille differently than others similarly situated based on race⁵ and

• deprived Camille of an educational benefit or opportunity.

We thus view the claim "through the prism of" these elements. United States v. Dominguez , 998 F.3d 1094, 1110 (10th Cir. 2021).⁶

Ms. Fine challenges

• the first element on the ground that she did not treat Camille differently than similarly situated students and

• the second element on the ground that the boycott didn't affect educational benefits or opportunities.

1. Someone could reasonably find that Ms. Fine treated Camille differently than similarly situated students.

Ms. Fine denies acting as the coach and argues that the team-members’ families acted on their own.⁷ We reject these arguments.

Ms. Fine's role in the boycott would be obvious under Camille's version of events....