Case: 14-51098    Document: 00513257817    Page: 1   Date Filed: 11/03/2015




                      REVISED NOVEMBER 3, 2015

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                        Fifth Circuit

                                                                       FILED
                                                                   October 13, 2015
                                 No. 14-51098
                                                                    Lyle W. Cayce
                                                                         Clerk
KYANA FENNELL, as Next Friend of Kyrianna Adams Fennell and Kavin
Johnson; LAWANDA FENNELL-KINNEY, as Next Friend of Kyrianna
Adams Fennell and Kavin Johnson,

             Plaintiffs - Appellants

v.

MARION INDEPENDENT SCHOOL DISTRICT; GLENN DAVIS,
Individually and in his Official Capacity as Former Athletic Director of
Marion High School; CYNTHIA MANLEY, Individually and in her Official
Capacity as a Former Coach at Marion High School,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Western District of Texas


Before KING, DENNIS, and OWEN, Circuit Judges.
KING, Circuit Judge:
      Plaintiffs–Appellants Lawanda Fennell-Kinney and Kyana Fennell, on
behalf of Kyrianna Adams Fennell and Kavin Johnson, brought claims under
Title VI of the Civil Rights Act of 1964 and 42 U.S.C. § 1983 against Marion
Independent School District and two of its employees, Glenn Davis and
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                                     No. 14-51098
Cynthia Manley. The district court granted Defendants–Appellees’ motion for
summary judgment as to all claims, and Plaintiffs appeal.
          I.     FACTUAL AND PROCEDURAL BACKGROUND
       Lawanda Fennell-Kinney is the mother of sisters Kyana Fennell,
Kyrianna Adams Fennell (Kyra), and Kavin Johnson, who were ages 18, 15,
and 13, respectively, when this action was filed in 2012. Plaintiffs, who are
African-American, claimed that Marion Independent School District (Marion
ISD) and two Marion ISD employees, Glenn Davis and Cynthia Manley,
discriminated against them on the basis of race and created a racially hostile
educational environment. Plaintiffs’ claims stem from a series of incidents that
took place while Kyana, Kyra, and Kavin were enrolled in Marion ISD, a
predominately Caucasian school district. 1 We recount the relevant incidents
below, organized by the nature of the harassment involved.
      A. Incidents Involving Nooses
      In February 2012, Fennell-Kinney drove to the Marion High School
parking lot to retrieve a car seat from Kyana’s car. Next to the car, Fennell-
Kinney found a noose and a printed note, which stated:
      Die Fuckin “nigger sisters” . . . Bitches!!!!
      You can never bring our families down . . .
      Whites will always rule this town and school!!!!
      Damn Spooks!!!!
      So go ahead and file your stupid damn complaints and grievances
      ...
      NIGGERS . . . and that “Nigger Lover” you have a baby with . . .
Fennell-Kinney immediately reported this incident to the Marion High School
assistant principal, and Kyana told the assistant principal her suspicions that


      1 These facts are recounted in the light most favorable to Plaintiffs, the non-moving
party. United Fire & Cas. Co. v. Hixson Bros., 

, 285 (5th Cir. 2006).
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                                   No. 14-51098
one of her classmates may have been involved. The assistant principal told
Fennell-Kinney that he would review the parking lot surveillance tapes. He
subsequently reported the incident to Officer Haverstock, a police officer for
the City of Marion who patrolled the school.
      Officer Haverstock began investigating after Kyana signed an Affidavit
of Prosecution. Haverstock interviewed several school employees as well as
every student Kyana suspected was involved in the incident. Haverstock also
reviewed the surveillance footage, which did not show the area of the parking
lot where the noose and note were found. One week after the incident, Kyana
signed an Affidavit of Non-Prosecution, indicating that she no longer wished
to pursue charges because the investigation and its backlash were causing her
stress and she did not trust the Marion Police Department.               The police
department suspended its investigation, and the Federal Bureau of
Investigation took over investigating the incident. 2
      This was not the first incident involving a noose at the high school. The
previous year, Doug Giles, another African-American student, found a noose
made out of a shoelace in his locker. Giles reported the incident to Defendant
Davis, who then addressed the boys athletic class, telling them that such
actions were unacceptable and would not be tolerated. When no one admitted
his involvement in the incident, Davis ordered the students to run laps as
punishment. Davis also informed the interim superintendent of Marion ISD
about the incident. 3
      B. Incidents Involving Racial Epithets and Slurs
      During their time in Marion ISD, Plaintiffs were the target of racial
epithets and slurs. The earliest events began in kindergarten when Kyana


      2 The case presently remains open and unsolved.
      3 Doug Giles was a ward of Fennell-Kinney at the time, but no one at the school
informed Fennell-Kinney about the incident.
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                                       No. 14-51098
was called a “nigger” by a boy on the school bus. Kyana responded by punching
the boy, for which she was disciplined. Kyana reported the boy’s statement to
the bus driver, but it is unclear whether the boy was also disciplined. 4 After
Kyana’s class read Huckleberry Finn in middle school, some of the students
started using the word “nigger” outside the context of the book.                       Kyana
reported this to her teacher, and the teacher then spoke to the class about the
incident, making clear that the word should not be used outside of discussions
of the book. Kyra received a text message from a classmate referring to her as
a “stupid nigger” after the 2008 presidential election.                 Kyra reported the
incident to her middle school principal, who suspended Kyra’s classmate after
explaining the inappropriate nature of the comment.
       Other students continued to target Plaintiffs with offensive remarks in
the years immediately preceding this litigation. During the 2009–2010 school
year, a Caucasian student called Kyana a “stupid nigger.” Kyana reported the
incident to the principal, who then contacted the student’s mother and
explained that the student had been told not to use such language. It is unclear
whether the student received any additional punishment.
       In February 2011, a group of students surrounded Kavin. One of the
Caucasian students hit Kavin and called her a “nigger.” Kavin then punched
the aggressor. After meeting with the two separately, the middle school
principal suspended both Kavin and the aggressor for three days. 5 The other
student called Kavin a “nigger” a week later, which Kavin reported to the



       4  Plaintiffs contend that no action was taken against the boy, but the evidence cited
by Plaintiffs shows only that Kyana did not know whether any action was taken. It is also
unclear whether the bus driver reported this incident to anyone at Marion ISD.
        5 Plaintiffs assert that the school district took no action against Kavin’s attacker and

the other aggressors. However, the evidence cited by Plaintiffs indicates only that no charges
were pressed against the girls due to the time period that had passed. The record clearly
indicates that both Kavin and the aggressor were suspended for the fight, which Plaintiffs
later conceded.
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                                       No. 14-51098
principal. It is unclear whether the principal took any disciplinary action
against the student in response to this second incident. 6 In another instance,
a Caucasian classmate told a joke in class using the word “nigger.” In response,
the teacher told Kavin that the student “didn’t mean it like that.” Kavin
reported the incident to the principal, who called the student’s mother. 7 After
the noose was found near Kyana’s car in February 2012, high school students
began yelling at Kavin and called her names, including “nigger,” as she walked
from the middle school to the high school for band practice. After Kavin
complained, the assistant principal assigned a teacher’s aide to accompany
Kavin during the walk each day. Kavin was also called “Blackie,” “Black girl,”
and “stupid little Black girl” by her peers on other occasions. 8
       In April 2012, the softball team took a team photo without Kyra present.
In the photo, one of the girls was in a shadow, and several of Kyra’s softball
teammates joked that the “black girl” was Kyra, cropped into the photo. Kyra
later learned of these comments, but she did not report them to Marion ISD.
       Individuals other than the sisters also experienced name-calling in
Marion ISD. In February 2012, Giles heard a Caucasian classmate use the
word “nigger” in a conversation with someone else.                        After a verbal
confrontation over the classmate’s use of the word, Giles initiated a physical
altercation by throwing a basketball at the student. The assistant principal
told the student not to use racial slurs, spoke to the student’s parents about



       6 Kavin declared she did not know what action the middle school principal took in
response, but in another portion of the deposition, Kavin indicated that she may not have
reported the incident at all.
       7 Plaintiffs contend that no further disciplinary action was taken against the student

or the teacher, but the evidence cited in support indicates only that Kavin did not know
whether further action was taken.
       8 Plaintiffs assert that no action was taken in response to these incidents, but the

evidence cited by Plaintiffs does not indicate whether these incidents were reported to Marion
ISD, nor does the evidence indicate what actions, if any, were taken in response.
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                                       No. 14-51098
the incident, and suspended the student for two days for using the racial slur.
The assistant principal also suspended Giles for two days for escalating the
incident into a physical fight. Similarly, Daryl Kinney testified that his son,
who attended school at Marion ISD for a year, was called “black boy” and
“nigger,” and ultimately withdrew from the district because of the racial slurs.
       C. Incidents Involving Defendants Davis and Manley
       In early 2011, Kyana had a hairstyle with streaks of burgundy in her
hair. 9 Defendant Davis, the Athletic Director, admonished Kyana for the
hairstyle. Davis told Kyana, “I know how much you people spend on your
ethnic hair styles” and asked Kyana “why [she] wanted to bring attention to
[her]self.”      Davis noted that the Marion ISD student dress code and the
athletics policy manual prohibited students from having their hair in non-
naturally occurring colors, including burgundy. Kyana was aware of and had
signed this policy. Davis informed Kyana that she would have to change her
hair color before she could continue playing sports. Kyana eventually re-
colored her hair. Davis, another coach, and the assistant principal had all
admonished other students, including Caucasian and Hispanic students, that
the students’ hair coloring violated school policies. Davis and the other coach
had also told the students that they would need to cut or re-dye their non-
naturally occurring hair before they could participate in school athletic
activities. 10




       9 No one else in the school during this time had a similar hair style. The assistant
principal had previously reprimanded Kyana for her hair color during the 2008–2009 school
year. After meeting with Fennell-Kinney, the assistant principal allowed Kyana to keep her
hair until her next hair appointment, although Kyana had to hide the coloring.
       10 Plaintiffs assert that other Caucasian students who wore their hair in non-naturally

occurring shades were not similarly admonished, but the evidence cited in support of this
proposition establishes only that Fennell-Kinney was aware that some other students at the
school had such hairstyles, not that those students were not reprimanded for their hair.
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      On April 17, 2012, the Marion girls’ varsity softball team, coached by
Defendant Manley, had an away game in Luling, Texas. Kyra was the starting
shortstop on the team. Earlier that day, Kyra left school, with permission,
after a heated argument with several other students. Kyra went to lunch with
Kyana and family friends. Kyana returned to school, but Kyra remained with
the family friends for the rest of the afternoon. Since Kyra was off campus
with family friends, she was absent when Manley took roll in Kyra’s last period
athletics course. After taking roll, the members of the softball team in the class
boarded the team bus, and the bus left for the away game. Kyra returned to
campus prior to the scheduled departure time for the bus, but the bus was
already leaving. The driver of the car Kyra was riding in waved and honked
at the bus to get Manley’s attention, but Manley did not see Kyra in the vehicle
and continued driving. Kyra followed the bus to the Luling game. When she
arrived, Manley told Kyra she could not start but could play later in the game.
Thereafter, Fennell-Kinney arrived at the game to take Kyra home. Manley
informed Fennell-Kinney and Kyra that Kyra would be benched for the next
game if she left the game early. After a verbal confrontation between Fennell-
Kinney and Manley, Fennell-Kinney and Kyra left.
      Two days later, after hearing that two other students had stated that
Kyana, who had a child, was a bad parent, Kyana confronted the students at
the softball field. During the verbal altercation, 11 one of the students asked
Kyana “[w]hat are you going to do, kick my ass?” to which Kyana responded,
“[y]es, if you want me to.” Several students reported the incident to Manley,
who intervened after the verbal altercation had ended. She told the students
to leave each other alone and to go home. Kyana then drove away. After Kyana



      11 The other students claim that Kyana physically pushed them, but this fact is
disputed by Kyana.
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                                       No. 14-51098
left, the other students involved in the altercation expressed to Manley that
they were afraid of Kyana. Manley instructed the students that they could file
a police report regarding the incident. Manley had never previously advised
any of her players to report an incident to the police. The students ultimately
filed charges against Kyana, which were later dismissed. Davis wrote an
incident report to the interim superintendent and to the Marion ISD School
Board regarding the altercation. Davis concluded, based on Manley’s account,
that Kyana bullied the other two students.
       D. Other Incidents of Harassment
       Plaintiffs were also harassed in other ways. In 2008, 12 Kyra received a
text message from a Caucasian classmate that showed an animation of KKK
members chasing President Obama. Kyra and the classmate had a physical
altercation, and both students received three-day suspensions following the
incident. 13 In 2010, one of Kyra’s teachers told Kyra’s class that “all black
people [are] on welfare.” Kyra confronted the teacher about the statement,
after which the teacher threatened to send her to the office if she “didn’t pipe
down.” Kyra did not report the incident to anyone else at the school.
       During the 2011–2012 school year, the girls’ final school year in Marion
ISD, the harassment continued. Kyana attended a basketball game with a
friend, who joked that two other girls were “bad influences” for cheating.
Ashley Smith, a Caucasian teacher who coached Kyana on the basketball team,
overheard the conversation and told Kyana: “You’re the bad influence. You’re




       12 That year, Fennell-Kinney also filed a grievance against one of Kyana’s teachers for
stating that Kyana was not intelligent enough to complete the work in his class. That
grievance was ultimately resolved.
       13 Although Plaintiffs assert that no action was taken against the classmate regarding

the incident, the evidence cited to support this proposition does not mention whether any
action was taken against the white classmate. In other portions of the record, Kyra stated
that the classmate received the same punishment as she did.
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                                     No. 14-51098
the one who had a kid at 17.” 14 Smith was suspended from coaching for one
game and given an official reprimand from the school’s athletic director. A
letter regarding the incident was also placed in Smith’s file. The incident
prompted Fennell-Kinney to file a grievance with the school administrators.
Following the incident, Kyana was also harassed by her peers at school for
getting Smith into trouble.
      Kavin tried out for the cheerleading squad, which prompted her peers to
say that “Black girls [aren’t] pretty enough to be cheerleaders.” In addition,
several girls recorded her tryouts on their cell phones, spreading the video
around the school with the title: “Little boy tries out for cheerleading.”
Although Fennell-Kinney reported to the cheer sponsor (a teacher) that some
of the girls had recorded Kavin’s tryout, it does not appear that any of the other
comments were reported to anyone at Marion ISD. Kavin was also involved in
an altercation in which a Caucasian male student spat in her face and told her
to “go back where you came from.” Kavin reported the incident to the principal,
who talked to the student about the incident. 15
      Kyra complained to the assistant principal regarding Facebook posts
from several of her classmates calling her a “bitch” and a “self-centered bitch.”
The classmates also complained to the assistant principal about Kyra’s posts.
The assistant principal told Kyra that he could not punish any of the girls for
this conduct because it occurred outside of school.




      14   Plaintiffs contend that Smith “has never been heard to make such comments to her
white students, regardless of what problems or trouble they may have experienced.” The
evidence cited to support this assertion, however, shows only that the deponent could not
recall if Smith had previously coached students that had become pregnant while on one of
her teams.
        15 The record contains no evidence whether any additional action was taken against

the student, contrary to Plaintiffs’ suggestion.
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                                      No. 14-51098
       E. Marion ISD Policies and Response to Complaints
       During the time period relevant to the lawsuit, Marion ISD had in place
policies prohibiting harassment, bullying, and racial discrimination. These
policies are contained in the District Employee Handbook and in the Student
Handbook.      Marion ISD also required its employees to attend in-service
training at the beginning of each school year; that training addressed issues of
bullying, discrimination, and harassment prevention and reporting.
       Marion ISD provided Kyana with alternative accommodations after the
parking lot noose incident and other incidents. Because of these incidents,
Kyana began suffering from anxiety and believed that some teachers were not
treating her fairly. The school allowed Kyana to complete her schoolwork in
the counselor’s office because of her anxiety. The accommodations also allowed
Kyana to park in the teachers’ parking lot and to eat lunch with teachers with
whom she felt comfortable.
       As a result of the above incidents, Fennell-Kinney filed a Level Three
grievance before the Marion ISD Board of Trustees (Board), which was
presented to the Board on May 30, 2012. 16 The district granted some of the
remedies requested by Plaintiffs and denied others. 17                 Marion ISD also
required its employees to attend additional training on its discrimination,
harassment, and bullying policies after the noose was found in the parking lot.
The training was facilitated by the Department of Justice (DOJ) and provided
by an outside organization, which was not affiliated with the district. Students
were also required to attend a special assembly led by the same organization



       16 Fennell-Kinney had previously filed Level One and Level Two grievances before
school administrators and the Marion ISD superintendent, respectively. One of the board
members recused himself from the Level Three proceedings due to any potential bias the
member might have had against Plaintiffs.
       17 Although the district’s response to the Level One and Level Two hearings are in the

record, the response to the Level Three hearing does not appear in the record.
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                                      No. 14-51098
on the same topics. The district, however, refused to sign a resolution provided
by the DOJ regarding the school’s policies. 18              Fennell-Kinney ultimately
withdrew Kavin and Kyra from Marion ISD in the spring of 2012 and enrolled
the sisters in another school district. 19
       Plaintiffs filed their original complaint on October 4, 2012. The district
court ordered several claims dismissed with prejudice, and on March 14, 2013,
Plaintiffs filed their Second Amended Complaint.                  The Second Amended
Complaint alleged equal protection claims under 42 U.S.C. § 1983 against
Manley and Davis, in their individual capacities, and Marion ISD, and a Title
VI claim against Marion ISD. 20            After discovery, Defendants moved for
summary judgment. On August 28, 2014, the district court granted summary
judgment as to all the claims. Plaintiffs timely appeal.
                          II.    STANDARD OF REVIEW
       We review a grant of summary judgment de novo, applying the same
standard as the district court. Cuadra v. Hous. Indep. Sch. Dist., 

,
812 (5th Cir. 2010). Summary judgment is proper “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court views the
evidence “in the light most favorable to the nonmoving party.” 

. “We may affirm a summary judgment on any ground supported
by the record, even if it is different from that relied on by the district court.”
Pierce v. Dep’t of U.S. Air Force, 

, 186 (5th Cir. 2007) (quoting
Lozano v. Ocwen Fed. Bank, FSB, 

, 641 (5th Cir. 2007)).



       18   The exact nature of the resolution is unclear.
       19   The 2011–2012 school year was Kyana’s senior year, and she graduated from
Marion High School after the 2012 spring semester.
         20 The Second Amended Complaint also alleged an equal protection claim under 42

U.S.C. § 1983 against Coach Smith, but the district court dismissed that claim with prejudice
for failing to state a claim.
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             III.   RACIAL DISCRIMINATION UNDER TITLE VI
      On appeal, Plaintiffs argue that summary judgment was improper
because a genuine dispute of material fact existed as to their Title VI claim
against Marion ISD. Section 601, Title VI, of the Civil Rights Act of 1964
provides that “[n]o person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance.” 21 42 U.S.C. § 2000d; Civil Rights Act
of 1964, Pub. L. No. 88-352, § 601, 78 Stat. 241, 252. Private individuals can
bring suit “to enforce § 601 of Title VI.” Alexander v. Sandoval, 

,
279 (2001). However, Section 601 “prohibits only intentional discrimination.”

285, 293 (emphasis added). Accordingly, “[t]o receive compensatory
damages, a Title VI plaintiff must prove discriminatory intent.” Canutillo
Indep. Sch. Dist. v. Leija, 

, 397 (5th Cir. 1996).
      This court has yet to address a Title VI claim premised on a racially
hostile environment arising from student-on-student harassment. One circuit
has adopted a three-element framework, based on a Department of Education
investigative guidance notice. Monteiro v. Tempe Union High Sch. Dist., 

, 1032–33 (9th Cir. 1998) (citing Racial Incidents and Harassment
Against Students at Educational Institutions; Investigative Guidance, 59 Fed.
Reg. 11,448, 11,449 (Mar. 10, 1994)). One year after Monteiro, however, the
Supreme Court held that a recipient of federal funding can be liable for
student-on-student sex-based harassment under Title IX if the recipient was
deliberately indifferent. Davis ex rel. Lashonda D. v. Monroe Cty. Bd. of Educ.,

, 650 (1999). Since Davis, courts of appeals presented with Title
VI student-on-student harassment claims have applied the deliberate


      21   It is undisputed that Marion ISD received federal financial assistance.
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                                     No. 14-51098
indifference standard from Davis, rather than the Monteiro framework. See,
e.g., Blunt v. Lower Merion Sch. Dist., 

, 272–73 (3d Cir. 2014);
Zeno v. Pine Plains Cent. Sch. Dist., 

, 664–65 (2d Cir. 2012);
Bryant v. Indep. Sch. Dist. No. I-38 of Garvin Cty., 

, 934 (10th Cir.
2003).
      We agree that the correct analytical framework for a Title VI student-
on-student harassment claim is the deliberate indifference standard. While
Davis dealt with sex-based peer harassment under Title IX, 

–38, “Congress modeled Title IX after Title VI . . . and passed Title IX with
the explicit understanding that it would be interpreted as Title VI was.”
Fitzgerald v. Barnstable Sch. Comm., 

, 258 (2009). As the Tenth
Circuit recognized, “the [Supreme] Court’s analysis of what constitutes
intentional sexual discrimination under Title IX directly informs our analysis
of what constitutes intentional racial discrimination under Title VI (and vice
versa).” 

; see also Doe v. Galster, 

, 617 (7th
Cir. 2014).    Furthermore, this court has previously noted the similarities
between Title VI, Title IX, and 42 U.S.C. § 504 when it extended the deliberate
indifference standard from Davis to § 504 claims. Estate of Lance v. Lewisville
Indep. Sch. Dist., 

, 995–96 (5th Cir. 2014).
      Therefore, under Title VI, we apply the deliberate indifference standard
to claims of liability arising from student-on-student harassment. 22 A school
district receiving federal funds may be liable for student-on-student
harassment if (1) the harassment was “so severe, pervasive, and objectively
offensive that it can be said to deprive the victims of access to educational
opportunities or benefits provided by the school” (a racially hostile


      22 While the district court facially adopted the Monteiro three-element framework in
its summary judgment analysis of the Title VI claim, the district court also incorporated
Davis’s deliberate indifference standard within that same analysis.
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                                       No. 14-51098
environment), and the district (2) had actual knowledge, (3) had “control over
the harasser and the environment in which the harassment occurs,” and (4)
was deliberately indifferent. 

, 650; accord Sanches v.
Carrollton-Farmers Branch Indep. Sch. Dist., 

, 165 (5th Cir.
2011). 23 Here, the parties dispute only whether a racially hostile environment
existed and whether the school district was deliberately indifferent to that
environment. 24 We address each issue in turn.
   A. Racially Hostile Environment
       Plaintiffs have raised a genuine dispute that a racially hostile
environment existed.         For the harassment to be “severe, pervasive, and
objectively offensive,” 

, “the harassment must be more
than the sort of teasing and bullying that generally takes place in schools,” see

(analyzing harassment in the Title IX context). There
is no question, though, that repeatedly “being referred to by one’s peers by the
most noxious racial epithet in the contemporary American lexicon, [and] being
shamed and humiliated on the basis of one’s race” is harassment far beyond
normal schoolyard teasing and bullying.                 

.
Moreover, the use of a noose accompanied by a vitriolic and epithet-laden note
only underscores the severe, pervasive, and objectively offensive nature of the
harassment. See Porter v. Erie Foods Intern., Inc., 

, 635–36 (7th
Cir. 2009) (discussing the historical meaning and power of noose imagery). The
harassment faced by Giles and Daryl Kinney’s son also points toward a racially
hostile environment. See 

(“[R]acist attacks need



       23 This court has expressly included an additional element for Title IX student-on-
student harassment claims: the harassment was based on the victim’s sex. 

. The corollary requirement under Title VI would be that the harassment was based
on the victim’s “race, color, or national origin.” See 42 U.S.C. §2000d.
       24 Since we hold that Plaintiffs have failed to raise a genuine dispute that Marion ISD

was deliberately indifferent, we need not address the undisputed elements.
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                                  No. 14-51098
not be directed at the complainant in order to create a hostile educational
environment.”).
      Marion ISD contends that the harassment by fellow students was too
periodic and sporadic to constitute a racially hostile environment. It argues
that the harassment must be “more than episodic; [it] must be sufficiently
continuous and concerted” to constitute “pervasive” harassment. Hayut v.
State Univ. of N.Y., 

, 745 (2d Cir. 2003) (quoting Carrero v. N.Y.C.
Hous. Auth., 

, 577 (2d Cir. 1989)). While Hayut held that biweekly
comments over the course of one semester “were sufficiently pervasive to create
a hostile environment,” 

the Second Circuit has also held that much
less regular name-calling raised a triable issue of fact. See DiStiso v. Cook, 

, 243 (2d Cir. 2012) (noting that use of the word “nigger”
approximately eight to fifteen times over a single school year raised a question
of whether the name-calling was severe or pervasive). Furthermore, this court
has held that racially offensive remarks made every few months over three
years was sufficient to raise a genuine dispute of whether a hostile
environment exists under Title VII. See Walker v. Thompson, 

,
626 (5th Cir. 2000), abrogated on other grounds, Burlington Northern & Santa
Fe Ry. Co. v. White, 

(2006). Viewing the evidence in the light most
favorable to Plaintiffs, the racially offensive remarks and actions, especially in
the two to three years immediately before this litigation, were sufficiently
regular and continuous to constitute “severe, pervasive, and objectively
offensive” harassment. 

.
      Moreover, this harassment “deprive[d Plaintiffs] of access to the
educational opportunities or benefits provided by the school.”          

must have a “concrete, negative effect” on the victims’ education,

such as creating “disparately hostile educational environment


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                                      No. 14-51098
relative to [the victim’s] peer,” 25 forcing the student to change his or her study
habits 26 or to move to another district, 27 or lowering the student’s grades. 28
Here, Kyana suffered from anxiety and required alternative study
arrangements, while Kyra and Kavin were ultimately withdrawn from Marion
ISD and moved to another district. These facts are sufficient to raise a genuine
dispute that Plaintiffs were deprived of educational opportunities by the
“severe, pervasive, and objectively offensive” harassment at Marion ISD.
   B. Deliberate Indifference
      However, Plaintiffs have failed to raise a genuine dispute over whether
the school district was deliberately indifferent to the harassment. Noting the
“flexibility [school administrators] require,” the Supreme Court in Davis
explained that a school district should be “deemed ‘deliberately indifferent’ to
acts of student-on-student harassment only where the recipient’s response to
the harassment or lack thereof is clearly unreasonable in light of the known
circumstances.” 

Mere negligence will not suffice. 

see
also 

(“[Deliberate Indifference] is a high bar, and
neither negligence nor mere unreasonableness is enough.”).                    Accordingly,
“[o]fficials may avoid liability under a deliberate indifference standard by
responding reasonably to a risk of harm, ‘even if the harm ultimately was not
averted.’” Doe ex rel. Doe v. Dall. Indep. Sch. Dist., 

, 384 (5th Cir.
2000) (quoting Farmer v. Brennan, 

, 844 (1994)).
      The evidence here, even viewed in the light most favorable to Plaintiffs,
fails to raise a genuine dispute that Marion ISD’s responses to these incidents
were clearly unreasonable. Here, Marion ISD took some action in response to



      25 

.
      26 Vance v. Spencer Cty. Pub. Sch. Dist., 

, 259 (6th Cir. 2000).
      27 

.
      28 

.

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                                  No. 14-51098
almost all of the incidents noted by Plaintiffs. In particular, Marion ISD took
relatively strong action to address the most egregious incidents. After the
parking lot noose incident, Marion ISD provided Plaintiffs with various
accommodations, including allowing Kyana to park in the teacher’s parking lot
and complete school work in the counselor’s office, and providing Kavin with
an aide to walk her to the high school. Cf. Watkins v. La Marque Indep. Sch.
Dist., 308 F. App’x 781, 784 (5th Cir. 2009) (per curiam) (unpublished)
(concluding that a school did not act with deliberate indifference to student’s
sexual harassment where it separated the student from the harasser and
provided the student “with an escort at all times”). Moreover, Marion ISD
cooperated with the police and FBI investigations of the incident. On other
occasions, students were suspended for their misconduct, such as the student
who called Kyra a “stupid nigger,” and the student who hit Kavin and called
her a “nigger” in 2011.
      Plaintiffs contend that Marion ISD failed to take appropriate action to
stop the harassment. See 

(stating that “a failure to
act” in addressing the use of racial epithets “can only be the result of deliberate
indifference”). On several occasions, Marion ISD responded to incidents of
students using the word “nigger” with relatively mild punishments, such as
only addressing the class about the use of the word or contacting the offending
students’ parents. The weakest response came with respect to the shoelace
noose found in Giles’s locker, where Defendant Davis only reprimanded the
students in the class and ordered them to run laps. Taken together, these
relatively weak responses to harassment are concerning but are not
tantamount to Marion ISD intentionally “subject[ing] its students to
harassment.” 

. The Supreme Court has stated that
“courts should refrain from second-guessing the disciplinary decisions made by
school administrators.” 

; see also 

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                                  No. 14-51098
617 (“School officials are given broad latitude to resolve peer harassment.”).
“Ineffective responses . . . are not necessarily clearly unreasonable.” 

. Because some action was taken in an attempt to address each
of these issues, these incidents do not create a genuine issue of material fact
as to deliberate indifference. Cf. Rivera v. Hous. Indep. Sch. Dist., 

, 250 (5th Cir. 2003) (“[E]ven if the Parents could show that the Board was
not assiduous at fighting gang activity, this does not demonstrate that it was
‘deliberately indifferent’ to the danger that gang activity might have posed to
[the victim].”).
      For the remaining incidents, the record either lacks evidence that the
incidents were reported to Marion ISD, or the record is unclear whether any
disciplinary action was taken. As to the former incidents, a school district can
only be liable when it has “actual knowledge of the harassment.” 

. As to the latter incidents, there is insufficient evidence to show a
genuine dispute that Marion ISD was deliberately indifferent because
Plaintiffs failed to adduce evidence as to the extent of the district’s responses.
The record does contain, however, evidence of the additional action taken by
Marion ISD as an overall response to Plaintiffs’ grievances. It required its
employees to attend additional training on the district’s discrimination,
harassment, and bullying policies, and it required students to attend a special
assembly on the same topics.        While Plaintiffs did not receive all of the
remedies they requested through the grievance process and Marion ISD’s
actions did not alleviate all issues of racial harassment in its schools, “[s]chools
are not required to remedy the harassment or accede to a parent’s remedial
demands.” 

–68; cf. 

(“Title IX does not require
flawless investigations or perfect solutions.”). Accordingly, the district court
did not err in granting summary judgment on the Title VI claim.


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                                         No. 14-51098
              IV.    EQUAL PROTECTION CLAIMS UNDER § 1983
       Plaintiffs also argue that summary judgment was improper for their
equal protection claims, brought under § 1983, against Marion ISD and against
Defendants Manley and Davis in their individual capacities. “Section 1983
provides a cause of action against any person who deprives an individual of
federally guaranteed rights ‘under color’ of state law.” 29 Filarksy v. Delia, 

, 1661 (2012). “Section 1983 is not itself a source of substantive
rights; it merely provides a method for vindicating already conferred federal
rights.” Bauer v. Texas, 

, 357 (5th Cir. 2003). One such federal
right is conferred by the Equal Protection Clause, which prohibits a state from
“deny[ing] to any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1. Accordingly, “[t]o state a claim of racial
discrimination under the Equal Protection Clause and section 1983, the
plaintiff ‘must allege and prove that [(1) he or she] received treatment different
from that received by similarly situated individuals and that [(2)] the unequal
treatment stemmed from a discriminatory intent.’” Priester v. Lowndes Cty.,

, 424 (5th Cir. 2004) (quoting Taylor v. Johnson, 

, 473
(5th Cir. 2001)).        To establish discriminatory intent, a plaintiff must show
“that the decision maker singled out a particular group for disparate treatment
and selected his course of action at least in part for the purpose of causing its



       29   Section 1983 provides, in relevant part:

       Every person who, under color of any statute, ordinance, regulation, custom,
       or usage, of any State or Territory or the District of Columbia, subjects, or
       causes to be subjected, any citizen of the United States or other person within
       the jurisdiction thereof to the deprivation of any rights, privileges, or
       immunities secured by the Constitution and laws, shall be liable to the party
       injured in an action at law, suit in equity, or other proper proceeding for
       redress . . . .

42 U.S.C. § 1983. Defendants do not contest that they were acting under color of state law.
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                                       No. 14-51098
adverse effect on an identifiable group.” 

, 257 F.3d at 473).
“Allegations [of discriminatory intent] that are merely conclusory, without
reference to specific facts, will not suffice.” 

       As an initial matter, Defendants do not assert qualified immunity on
appeal, and thus have waived this defense. See United States v. Scroggins, 

, 446–47 (5th Cir. 2010). We therefore address whether Plaintiffs have
raised a genuine dispute as to each claim.
   A. Marion ISD
       Plaintiffs advance two primary theories in support of their equal
protection claim against Marion ISD: (1) a theory premised on alleged
discriminatory customs or policies and (2) a theory premised on an alleged
failure to train. 30 With respect to both theories, “a municipality cannot be held
liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t of Soc.
Servs. of N.Y.C., 

, 691 (1978).                         Accordingly, “isolated
unconstitutional actions by municipal employees will almost never trigger
liability,” but rather “the unconstitutional conduct must be directly
attributable to the municipality through some sort of official action or
imprimatur.” Piotrowski v. City of Houston, 

, 578 (5th Cir. 2001).
“[M]unicipal liability under Section 1983 requires proof of three elements: a
policymaker; an official policy; and a violation of constitutional rights whose
‘moving force’ is the policy or custom.” 

436 U.S. at 694).
The policymaker is liable if an official policy itself is unconstitutional or the
policy was adopted “with ‘deliberate indifference’ to its known or obvious



       30 On appeal, Plaintiffs briefly suggest that they are alleging a racially hostile
environment in support of their equal protection claim against Marion ISD. However, the
substance of their racially hostile environment allegations falls within their discussion of the
Title VI claim. In any event, an § 1983 equal protection claim premised on such a theory
requires that the district was deliberately indifferent, see 

, and
therefore would suffer the same fate as the Title VI claim.
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                                 No. 14-51098
consequences.” Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force,

, 309 (5th Cir. 2004) (quoting Bd. of Cty. Comm’rs of Bryan Cty. v.
Brown, 

, 407 (1997)). An official policy may take “various forms,”
including “a widespread practice that is ‘so common and well-settled as to
constitute a custom that fairly represents municipal policy.’” James v. Harris
Cty., 

, 617 (5th Cir. 2009) (quoting 

).
Regardless of its form, the policymaker must have actual or constructive
knowledge of the official policy or custom. Johnson v. Moore, 

, 94
(5th Cir. 1992); see also Connick v. Thompson, 

, 1360 (2011)
(describing the knowledge requirement for failure to train claims).
      Importantly,   “[t]he   policymaker   must    have   final   policymaking
authority.” 

. As Plaintiffs admit, the final policymaker
here is the Marion ISD Board of Trustees, which has “exclusive policymaking
authority under Texas law.” Id.; see also Tex. Educ. Code Ann. § 11.151(b)
(“The trustees as a body corporate have the exclusive power and duty to govern
and oversee the management of the public schools of the district.”). Here, the
record shows that the grievances at issue were not presented to the Board until
May 2012, after all the incidents described above occurred. Although the
record indicates that some of the incidents were reported to Marion ISD
administrators and the interim superintendent, those individuals have not
been delegated policymaking authority under Texas law. See 

(noting that the plaintiffs could point to no law “empowering the Board
with the authority to delegate its exclusive policymaking authority”); Jett v.
Dall. Indep. Sch. Dist., 

, 1251 (5th Cir. 1993) (“Under Texas law
such policymaking authority rests exclusively with the [Board], and there is no
evidence they had delegated it to [the superintendent].”). Thus, even assuming
the alleged customs, policies, and failures to train existed among Marion ISD
employees, “[t]here is no evidence that the Board knew of this behavior or
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                                      No. 14-51098
condoned it.” 

. In particular, while the Board may have
known about three of the incidents prior to the May 2012 Board meeting, 31
those alone are not sufficient to show the board had knowledge of any
discriminatory custom.          See 

(“[I]solated
unconstitutional actions by municipal employees will almost never trigger
liability.”). Moreover, the Board had previously implemented official policies
prohibiting racial discrimination, bullying, and harassment. Cf. 

(noting that the official policies of the Board “suggest a policy that
was, at minimum, antagonistic to gang-related activity”).                And after the
parking lot noose         incident,   Marion     ISD instituted        additional anti-
discrimination and anti-harassment training facilitated by the DOJ and
provided by an unaffiliated organization. See 

(noting that a policymaker’s “policy of inaction” upon notice of a failure to train
employees constitutes deliberate indifference). The district court therefore did
not err in granting summary judgment as to the claim against Marion ISD
under § 1983.
   B. Cynthia Manley
       Plaintiffs argue that the district court erred in granting summary
judgment on their equal protection claim against Defendant Manley.                     On
appeal, Plaintiffs rely on two incidents to support this claim: (1) the April 2012
Luling bus incident and (2) the April 2012 softball field altercation.
      As to the Luling bus incident, Plaintiffs have failed to show that Kyra
was treated differently than similarly situated peers. Kyra signed out of school
on the day of the away game and missed her remaining classes that school day.
While Kyra arrived on campus prior to the scheduled departure time, there is


      31There was extensive local media coverage of the parking lot noose incident; a board
member had previously been informed about Coach Smith’s “bad influence” comment; and
Davis wrote a report to the Superintendent and the Board on the softball field altercation.
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                                       No. 14-51098
no dispute that Kyra was not present during the team’s roll call. Moreover,
there is no evidence in the record suggesting that Manley had ever encountered
a situation in which a student signed out for lunch on a game day and failed to
return in time for the team’s roll call. Nor is there any evidence that she had
failed to punish a student in such a situation. 32 See Club Retro, L.L.C. v.
Hilton, 

, 213 (5th Cir. 2009) (deeming allegations “insufficient to
show disparate treatment where plaintiffs have failed to allege any facts
showing that [others were] similarly situated”). Plaintiffs have thus failed to
show the treatment of any similarly situated peers, let alone that Kyra was
treated differently. 33
       Plaintiffs also point to the softball field altercation several days later
between Kyana and two other students. Although there is a genuine dispute
as to whether the altercation was merely verbal or involved physical contact,
there is no dispute that Manley did not personally observe the incident. There
is also no dispute that Manley did not impose any punishment on any of the
three girls, but rather told all of the participants to leave each other alone and
go home. While the evidence does suggest disparate treatment because Manley
suggested that only the two students, and not Kyana, file a police report, these
students were not similarly situated. The undisputed evidence shows that only



       32 Plaintiffs contend that Manley had previously failed to discipline students who had
signed out for lunch on game day, but provide no evidentiary support for that assertion. See
Ragas v. Tenn. Gas Pipeline Co., 

, 458 (5th Cir. 1998) (“[U]nsubstantiated
assertions are not competent summary judgment evidence.”).
       33 The only relevant undisputed evidence in the record concerns students that, as

Plaintiffs correctly note, were not similarly situated to Kyra. Even if we interpreted
“similarly situated” to include these students, Plaintiffs would have failed to show that Kyra
was treated differently because that evidence showed that Manley would depart from school
prior to the scheduled departure time (so long as students present for roll call were on the
bus), would not wait for students who were not present for roll call, and would not start
students who were late and missed the bus. See Muhammad v. Lynaugh, 

, 903
(5th Cir. 1992) (rejecting an equal protection claim where an inmate was “no exception” to
the treatment of his similarly situated peers).
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                                       No. 14-51098
those two students expressed to Manley that they were afraid of Kyana, stating
that they feared that Kyana or her family would “come after them”; Kyana
expressed no such concerns.           Although Manley admitted to never having
previously advised students to file a police report, she also testified that she
had not previously had any students fight or threaten each other. 34 Nor is
there any evidence suggesting that Manley would not have given the same
instructions to Kyana had she reported that she feared the other two students.
       Furthermore, there is no evidence in the record suggesting that Manley
acted on the basis of race in either incident, see 

(“Allegations that are merely conclusory, without reference to specific facts,
will not suffice.”); in fact, Kyra herself stated that Manley’s actions relating to
the Luling bus incident had nothing to do with race. Thus, there is no evidence
that Manley “singled out” Plaintiffs “for disparate treatment . . . in part for the
purpose of causing [an] adverse effect on an identifiable group.” 

(quoting 

). The district court therefore properly granted
summary judgment on the claim against Manley.
   C. Glenn Davis
       Plaintiffs next argue that the district court erred in granting summary
judgment on their equal protection claim against Defendant Davis. On appeal,
Plaintiffs rely on two incidents to support their claim against Davis: (1) the
January 2011 hairstyle incident involving Kyana and (2) the April 2012
softball field altercation.
       Viewed in the light most favorable to Plaintiffs, Davis made a racially
offensive comment to Kyana by stating that he “know[s] how much you people
spend on your ethnic hair styles.” Such a comment is clearly indicative of racial


       34Plaintiffs only provide conclusory allegations that “[they] would think” Manley had
seen other altercations and that they “[didn’t] think she instructed them to go file charges on
those students.”
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                                     No. 14-51098
animus. See Williams v. Bramer, 

, 706 (5th Cir. 1999), decision
clarified on reh’g, 

(5th Cir. 1999) (“The use of an epithet is
therefore strong evidence that a comment or action is racially motivated.”).
However, the racially offensive comment alone is insufficient to support an
equal protection claim under § 1983; the comment must also be coupled with
“harassment or some other conduct that deprives the victim of established
rights” to constitute an equal protection violation. 

evidence of
Davis’s racial motivation was not coupled with any disparate treatment. The
incident culminated in Davis informing Kyana that she would have to change
her hair color before she could continue to participate in school athletic
activities. There is no dispute that Kyana’s hair color was in violation of the
athletic policy, and there is undisputed evidence that Marion ISD officials
consistently reprimanded students of all races who violated the hair color
policies, requiring those students to change their hair color. 35 Accordingly,
despite Davis’s racially offensive comment, there is no evidence suggesting
that Kyana “received treatment different from that received by similarly
situated individuals.” 

.
      Furthermore, Plaintiffs have waived any claim against Davis premised
on the April 2012 softball field altercation involving Kyana.               The Second
Amended Complaint clearly alleges that the relevant incident underlying this
claim was Davis’s failure to override Manley’s punishment arising from the
softball bus incident involving Kyra, not the softball field altercation involving
Kyana. Although the Second Amended Complaint alleges facts relating to
Manley’s handling of the softball field altercation, it includes no allegations
against Davis relating to his investigation and report on the altercation. This



      35 Plaintiffs assert that they were aware of students with non-naturally colored hair
but did not testify to any personal knowledge that those students were not reprimanded.
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                                   No. 14-51098
court has made clear that “[a] claim which is not raised in the complaint but,
rather, is raised only in response to a motion for summary judgment is not
properly before the court.” Cutrera v. Bd. of Supervisors of La. State Univ., 

, 113 (5th Cir. 2005). Because Plaintiffs have failed to show a genuine
dispute that Davis treated Plaintiffs differently from similarly situated
individuals on the only incident properly raised in the complaint, we conclude
that the district court correctly granted summary judgment on the claim
against Davis.
                              V.     Conclusion
      For the foregoing reasons, we AFFIRM the judgment of the district court.




                                       26