Student can bring Title VI claims over peer harassment

A high school student who faced racial harassment and cyberbullying from peers while running for student council can sue the school district and board of education under Title VI, the 4th U.S. Circuit Court of Appeals has ruled.

While a sophomore in high school, Davina Ricketts decided to run for student council, saying she hoped to remedy its lack of diversity. Instead, she allegedly faced cyberbullying and racial harassment from her peers in response, while the school district failed to intervene sufficiently.

A federal judge in the Eastern District of North Carolina dismissed her complaint and denied her motion for leave to amend on futility grounds.

In a matter of first impression in the 4th Circuit, an appellate panel reversed, joining other circuits in recognizing the existence of Title VI claims for student-on-student racial harassment.

“Considering the facts as pled in the proposed amended complaint, Ricketts has sufficiently alleged deliberate indifference, retaliation, and equal protection claims at this stage,” Judge Roger L. Gregory wrote.

The 29-page opinion is Ricketts v. Wake County Public School System (VLW 024-2-335).

New standard

Lindsay K. Bunting Eubanks, a Richmond attorney at Sands Anderson, said lawyers need to be aware of the new standard established by the 4th Circuit for deliberate indifference.

“The court discussed deliberate indifference in the K-12 context but quoted cases that applied to universities, so the standard could be stretched and applied in the university context as well,” she noted.

Williamsburg lawyer Jamie Heisler Ibrahim, also of Sands Anderson, expressed concern about the breadth of the standard and the potential for liability.

“I think a lot of school divisions mistakenly believe they need evidence in order to have a duty to respond to racial harassment,” she said. “This decision reinforces that is not the case and allegations of racial harassment are sufficient to trigger the duty to respond in a manner that is not indifferent.”

Neither Alexander G. Siemers of Latham & Watkins in Washington, D.C., who represented Ricketts, nor Raleigh attorney Stephen G. Lawson of Tharrington Smith, who represented the defendants, responded to a request for comment.

Student council election

In February 2016, Ricketts was a sophomore at William G. Enloe High School in Raleigh, part of the Wake County Public School System governed by the Wake County Board of Education.

Ricketts submitted a timely application declaring her candidacy for junior class vice president. During the campaign period, multiple social media accounts were created by student council members with polls and posts promoting candidates.

Ricketts and the three other Black sophomore students were excluded from all the polls and posts. After they spoke out about the posts, the accounts were taken down. During the same time period, campaign materials – including posters and promotional bookbag-tags – that belonged to Ricketts and the three other Black sophomore students were defaced, ripped and thrown throughout the Enloe building.

Although aware of the discriminatory acts, the administration allegedly took no action.

The election was delayed. On the new date, the names of Ricketts and the other three Black sophomore students did not appear on the junior class ballot. The election was postponed for a second time and many students were angered by the delay and having to start the process over again.

Some of the disgruntled students, as well as some parents, began cyberbullying Ricketts, labeling her as one of the “angry Black girls” and blaming her for “wrongly overreacting to a ‘technical glitch’ and calling it discrimination.” Enloe students also whispered about Ricketts in class, hostilities were posted on social media accounts, and Ricketts’ campaign materials were destroyed again.

Ricketts’ mother reached out to administration on more than one occasion about the situation and the impact it was having on her daughter.

In addition, two teachers refused to write letters of reference for Ricketts, and the school newspaper published during the election period was riddled with racial stereotypes and derogatory remarks toward minority students. Some members of the Board of Education commented on the situation by saying “[t]hat’s just the culture.”

Ricketts was unsuccessful in her campaign and continued to experience racial harassment after the election. She sued, asserting retaliation and a student-on-student harassment claim under Title VI, as well as an equal protection claim against the board and several individual school faculty members and administrators.

The district court granted the defendants’ motion to dismiss and denied Ricketts’ motion for leave to amend.

Ricketts appealed.

‘Probable certainty’

The 4th Circuit panel considered each of Ricketts’ claims, beginning with her allegations of deliberate indifference under Title VI, which the court found sufficient to move her claim forward.

The racial harassment that Ricketts alleged was “so severe, pervasive, and objectively offensive that it deprived her of equal access to the educational opportunities or benefits provided by Enloe,” Gregory wrote. “Such incidents collectively – excluding Ricketts from polls and posts, destroying her campaign materials, labeling her an ‘angry Black girl,’ and mocking her campaign by way of a cockroach reference – rise above simply acts of teasing and name-calling among school children and sufficiently allege severe, pervasive, and objectively offensive harassment at this stage.”

As a result, Ricketts was denied the benefit of an academic environment free from racial hostility, the court said.

Ricketts also sufficiently alleged that Enloe administrators had authority to address the alleged harassment and to institute corrective measures, and had actual notice or knowledge of the alleged harassment.

Further, her allegations that Enloe administrators acted with deliberate indifference — including refusing to meet about the ballot exclusion, knowledge that her campaign materials were being destroyed but doing nothing to stop it from happening and making no attempt to address the harassment she endured before, during and after the elections — also sufficed, the panel said.

Sufficient allegations

Turning to Ricketts’ claim for Title VI retaliation, the court again found that her allegations were sufficient to state a claim.

She was engaging in a protected activity — opposing ballot exclusion based on discrimination — and as a result of the restart of the election process, she was subjected to cyberbullying and racial harassment by other students and their parents.

“‘[S]tudent-on-student retaliatory harassment’ can ‘rise to the level of material adversity’ necessary to make out a retaliation claim,” the panel wrote. “And schools ‘can be liable for acting with deliberate indifference to known instances of student-on-student retaliatory harassment’ even though the school’s ‘administrators did not personally participate in the harassment.’”

Ricketts also sufficiently alleged retaliation in the form of direct action by school administrators, the court found, with a causal connection between the protected activity and adverse actions.

“Ricketts alleged the adverse action of cyberbullying occurred ‘immediately’ after she objected to ballot exclusion on the basis of discrimination and the election was re-scheduled,” Gregory wrote, noting that temporal proximity was enough to make out a prima facie case of causation at this stage of the proceedings.

Finally, the court reversed on Ricketts’ equal protection claim against the individual administrators involved in the events around the student council election. The court already determined that Ricketts sufficiently alleged the first two elements of the claim — discriminatory peer harassment and deliberate indifference — and she also established that the deliberate indifference was motivated by a discriminatory intent.

“Ricketts has alleged these defendants, individually and collectively, have either blatantly ignored or ‘sought to downplay the harassment’ she experienced and ‘made no effort to stop’ it, which is sufficient to state the intent element of the equal protection claim,” the panel said.

Similarly, the judges found that Ricketts sufficiently alleged an equal protection claim against the Board, based on comments such as “[t]hat’s just the culture” and numerous discrimination complaints against it.

Reversing the judgment below, the court ordered the district court to allow Ricketts to amend her complaint.