Jasmine Adams, et al v. Demopolis City Schools, et al

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11317
____________________
JASMINE ADAMS,
Individually and as Natural Parent of
McKenzie Adams, Deceased,
JANICE ADAMS,
As the Personal Representative of the
Estate of McKenzie Adams,
Plaintiffs-Appellants,
versus
DEMOPOLIS CITY SCHOOLS,
KYLE KALLHOFF,
TORI INFINGER,
GLORIA MIMS,
TRACY STEWART,
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2 Opinion of the Court 22-11317
Defendants-Appellees,
U.S. JONES ELEMENTARY SCHOOL,
Defendant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 2:20-cv-00027-TFM-N
____________________
Before JILL PRYOR , G RANT, and H ULL, Circuit Judges.
JILL PRYOR , Circuit Judge:
“N*****,”1 “black bitch,” “dumb black bitch,” “pussy ass
bitch,” “go kill yourself.” These are the words that nine-year-old
McKenzie Adams heard from her fourth-grade classmate before
she took her life in December of 2018. After McKenzie’s death, her
mother, Jasmine Adams, and her grandmother, Janice Adams,
sought to hold McKenzie’s school system and several school offi-
cials accountable for her death. The Adamses filed a lawsuit assert-
ing claims arising under federal and state law against the school
1 We have sanitized one of the racial epithets repeatedly directed at McKenzie
Adams by replacing the full slur used with “n*****.” In doing so, we do not
mean to diminish its impact.
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22-11317 Opinion of the Court 3
system and the school officials. The district court granted summary
judgment to the school system and its officials, concluding that the
Adamses failed to satisfy various elements of their federal statutory
claims and that qualified immunity barred at least one of the
claims. As to the Alabama tort claims, the court concluded that the
school system and its officials were entitled to immunity under
state law. And even if they were not entitled to immunity, the court
continued, the school system and officials did not proximately
cause McKenzie’s injury because her suicide was an unforeseeable
act that cut off any proximate causation.
The Adamses appeal the district court’s grant of summary
judgment on all their claims. After careful consideration of the rec-
ord, and with the benefit of oral argument, we affirm. Although
the response of the school system and its officials was truly discour-
aging, the standard for relief in cases of student-on-student harass-
ment is exacting. Thus, despite the tragic facts of this case, we af-
firm the district court’s decision granting summary judgment to
the school system and its officials.
I. BACKGROUND
In this section, we begin by describing the bullying that
McKenzie faced in the months leading up to her death. We then
discuss the policies the school system had in place to address bully-
ing and suicide prevention. Lastly, we recount the litigation that fol-
lowed McKenzie’s death.
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4 Opinion of the Court 22-11317
A. The Bullying
McKenzie Adams, a nine-year-old Black girl, attended U.S.
Jones Elementary School in Demopolis, Alabama.2 The school was
a part of Demopolis City Schools school district (“DCS”). In Au-
gust 2018, McKenzie began attending the elementary school as a
fourth-grade student. She lived with her grandmother, Janice Ad-
ams, in Demopolis but kept in close contact with her mother, Jas-
mine Adams, who lived in Tuscaloosa.
Almost immediately after the start of the school year,
McKenzie was bullied. One of the students who was bullying
McKenzie was E.C.3 E.C. was a White male student, similar in age
to McKenzie. Beginning in August, McKenzie told her grand-
mother that E.C. was bothering her at school. McKenzie reported
that E.C. called her names almost every day. The comments he
made to McKenzie included: “black bitch, dumb black bitch, you
n*****, go kill yourself, [and] [p]ussy.” Doc. 189-11 at 49.4 Another
student, C.J., heard E.C. call McKenzie “n*****” multiple times.
Doc. 189-13 at 25–26. A different student recalled hearing E.C. tell
McKenzie that she was “too dark,” a reference to her skin complex-
ion. Doc. 189-15 at 24.
2 Given our standard of review at the summary judgment stage, in recounting
the facts of this case, we accept the Adamses’ version of disputed facts and
draw all reasonable inferences from those facts in their favor. See Rowe v. City
of Fort Lauderdale, 279 F.3d 1271, 1279 n.9 (11th Cir. 2002).
3 We identify the students, who are minors, by the initials used by the parties.
4 “Doc.” numbers refer to the district court’s docket entries.
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22-11317 Opinion of the Court 5
Other students also bullied McKenzie. C.J. recalled that, at
least once, two other male students (D.M. and C.T.) pulled McKen-
zie’s hair, hit her, and slapped her in the back. C.J. also described an
instance where McKenzie mistakenly stepped on the back of an-
other student’s shoe. That student (C.T.) called McKenzie “black
motherfucker” in return. Doc. 189-13 at 24–25. Several students
(E.C., D.M., and C.T.) criticized McKenzie’s hair.
Once when C.J. heard E.C. call McKenzie “n*****,” he told
Gloria Mims, one of McKenzie’s teachers. Another time, when
Mims heard E.C. call McKenzie “n*****,” she disciplined E.C. by
sending him to the office and memorializing the incident in writ-
ing—“[s]he wrote him up.” Id. at 26. E.C. received several days of
in-school suspension for the incident.
On yet another occasion, C.J. and another student reported
the bullying to Mims and Whitney Mosley, McKenzie’s homeroom
teacher. When the teachers tried to confirm the bullying instances
with McKenzie, she denied that there was any bullying and said
that the other students were just playing with her.
But this harsh treatment from her classmates plainly upset
McKenzie. She would cry or sit at her desk and lay her head down.
After McKenzie told her grandmother about the bullying, Janice
advised her to report it to Mims. McKenzie responded that she had
already done so. She told Janice that Mims would either send E.C.
into the hallway (as a form of discipline) or tell McKenzie to go sit
down.
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In late August, Janice called the school to speak with Mims
about the bullying. Mims never called her back. Around the same
time McKenzie received her school progress report, which detailed
her current achievement levels in each classroom subject. Janice
and McKenzie’s mother were surprised to see that she had received
a D letter grade in math. The D was unusual because McKenzie
normally earned As and Bs on her classwork. Janice wrote a note
on the progress report, “Need conference with Ms. Mims, not
happy about math grade at all.” Doc. 189-11 at 63. Janice listed her
phone number on the note so that Mims could call her. Janice gave
the progress report with the note to McKenzie so that she could
return it to her teacher.
By September, nobody from the school had called or other-
wise reached out to Janice. Janice then went to the school to speak
directly to Mims. Janice and Mims spoke about McKenzie’s grades.
Janice told Mims that E.C. was bullying McKenzie and that she be-
lieved McKenzie received a D on her progress report because of the
bullying. Mims responded that McKenzie was talking a lot in class.
Janice mentioned that the misbehavior was probably because of
the bullying. Janice stated that she would resolve the talking issue
with McKenzie, but Mims needed to address E.C.’s bullying.
The bullying continued. In October, while Janice was at the
school to participate in a school event, she attempted to speak with
Mims about McKenzie and E.C. But Mims was surrounded by
other parents who were also trying to speak with her. Because
Janice could not wait, she told Mims that she could not stay but was
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22-11317 Opinion of the Court 7
leaving her name and number because she needed to speak with
Mims about McKenzie and E.C. Mims did not reach out to Janice,
however.
A few weeks later, in late October or early November, Assis-
tant Principal Tracy Stewart called Janice to discuss an incident in
which McKenzie was written up for misbehavior. Stewart told
Janice that McKenzie and another student were passing a note back
and forth in class. Although Stewart would not tell Janice the iden-
tity of the other student involved, McKenzie later told Janice that
the other student was E.C. The note read:
E.C.: hey little pussy sucker what up
McKenzie: I hate you
E.C.: But you like asshole dumb ass bitch
E.C.: pussy=McKenzie
McKenzie: You are u-g-l-y bitch
E.C.: Your uglier than big birtha u bitch pussy bitch
suck it fuck you
McKenzie: . . . [three dots were drawn]
E.C.: What the hell do you mean
McKenzie: Sorry can’t talk
E.C.: fuck you[.]
Doc. 181-17 at 2.
After learning that E.C. was the other student involved in
the note-passing, Janice told Stewart that E.C. had been bullying
McKenzie since the school year started. Stewart explained she
nonetheless had to discipline McKenzie because McKenzie had
written profanity, “bitch,” on the note. Janice agreed that McKenzie
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8 Opinion of the Court 22-11317
should be disciplined, but she said Stewart “need[ed] to do some-
thing about [E.C.] bullying [McKenzie].” Doc. 189-11 at 85.
Initially, Stewart responded that she did not know about any
bullying behavior directed at McKenzie. But upon hearing about
the bullying, she discussed a plan with Janice that would allow
McKenzie to leave her classroom any time she felt threatened (the
“safety plan”). Stewart assured Janice that she would notify all of
McKenzie’s teachers about the safety plan so that McKenzie could
leave their classrooms too. When Janice asked if she needed to sign
the plan or any other documentation, Stewart reassured her that
she did not need to sign anything and Stewart would “take care of
it.” Id. at 84–85.
Before the call ended, Janice asked if she could include Jas-
mine (McKenzie’s mother) on the phone call, and Stewart agreed.
Soon after the call, Janice called Stewart back with Jasmine on the
line. On this call, Janice, Jasmine, and Stewart discussed the in-
stances of bullying and the safety plan. During the call, Jasmine said
that she was going to call a state department to complain about the
bullying. Stewart advised her not to. Stewart assured Janice and Jas-
mine that she would “handle it” and emphasized that the safety
plan would address the problem by allowing McKenzie to leave the
classroom whenever she felt threatened by the bullying. Id. at 86.
Janice never knew whether McKenzie ever used the safety
plan. But she noticed that McKenzie would comment that she had
a good day on the days when E.C. was assigned to in-school sus-
pension, which meant that he was not in the classroom with
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22-11317 Opinion of the Court 9
McKenzie on those days. Janice did not follow up further with
Stewart because she saw nothing unusual about McKenzie’s behav-
ior following the phone call. On November 6, unbeknownst to
Janice, McKenzie wrote in her diary, “Might just kill myself for me.
Yep. Said it. I might do it for her, my grandma, Chloe, and me. So
bye.” Id. at 115.5
On December 3, about five weeks after the safety plan was
put in place, McKenzie wrote in her diary at 1:30 p.m.: “Dear diary
I am in math class like get me out!! I don’t know how to do this
stuff. help . . . [three dots were drawn] Bitch move on. Sup
Bitch. . . . [T]hat fucker [student’s name redacted] in a grave.” Doc.
181-14 at 1. McKenzie returned home from school, hugged her
grandmother, ate a snack, and started to do her homework. Janice
noticed that McKenzie was quieter than usual, but she did not ob-
serve anything else out of the ordinary. Later that day, McKenzie
died by suicide in her grandmother’s home.
The day after McKenzie’s death, one of her classmates vis-
ited Janice at home and reported that E.C. had told McKenzie to
kill herself. Janice then recalled that McKenzie had said that E.C.
told her to “kill [herself ], just die” between August and November
of that year. Doc. 189-11 at 133.
5 This diary entry itself is not included in the record before us. But the record
includes a copy of Janice’s deposition, in which she read the diary entry. Seeing
no reason why the diary entry could not be reduced to admissible form at trial,
we consider it as part of the summary judgment record. Rowell v. BellSouth
Corp., 433 F.3d 794, 800 (11th Cir. 2005).
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10 Opinion of the Court 22-11317
B. DCS’s Anti-Bullying Policies
While McKenzie was a student at U.S. Jones Elementary,
DCS had an anti-bullying policy in place. The policy required that
instances of bullying be reported and documented. Before the start
of every school year, DCS required “annual training for all certified
employees [on] suicide awareness and prevention.” Doc. 189-2 at
137. The annual training could be “provided within the framework
of existing in[-]service training programs.” Id. To that end, DCS
teachers and staff completed an annual “Back to Basics” training
that covered the topics of bullying and suicide prevention.
DCS also had in place a “Code of Conduct.” The Code of
Conduct detailed different forms of misconduct and the conse-
quences for such misconduct. It defined bullying as “[c]omitting or
instigating aggressive acts toward another student with the intent
to irritate, intimidate, hurt, or produce a negative reaction from
the other student.” Doc. 189-10 at 9. And it laid out punishment for
bullying by students in kindergarten through fifth grade including
contacting parents, in-school suspension, and out-of-school suspen-
sion.
C. The Adamses’ Lawsuit
Following McKenzie’s death, Jasmine and Janice6 sued DCS
and several school officials, including Superintendent Kyle
Kallhoff, U.S. Jones Elementary School Principal Tori Infinger,
6 Jasmine sued in her individual capacity. Janice sued in her capacity as the
personal representative of McKenzie’s estate.
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22-11317 Opinion of the Court 11
Stewart, and Mims. In the operative complaint, the Adamses al-
leged that before McKenzie’s death, the State of Alabama had en-
acted a statute, the Jamari Terrell Williams Act, that required Ala-
bama public schools to adopt plans or programs that addressed bul-
lying. The Act went into effect shortly before McKenzie’s death.
According to the complaint, DCS failed to implement the policies
the Act required. Without the required policies in place, the Ad-
amses alleged, DCS failed to train officials and teachers on how to
identify and respond to student-on-student bullying.
The operative complaint included 11 counts, with some
claims arising under federal law and others under Alabama law.
Count I alleged that DCS was liable under Title IX7 because it was
deliberately indifferent to sex-based harassment and discrimination
that it was aware was being directed at McKenzie at school. Count
II alleged that DCS was liable under Title VI8 for the same reason.
Counts III, IV, VIII, IX, X, and XI pled claims under 42 U.S.C.
§ 1983, alleging that DCS, Kallhoff, and Infinger violated McKen-
zie’s right to substantive due process and equal protection under
the Fourteenth Amendment. And in Counts V, VI, and VII, the Ad-
amses alleged Alabama state-law wrongful death claims against
each of the defendants. Each wrongful death claim was based on
some form of negligent, reckless, or wanton conduct that allegedly
led to McKenzie’s death.
7 Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681.
8 Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.
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12 Opinion of the Court 22-11317
The defendants moved for summary judgment on all claims.
The district court granted the motion. The district court explained
to prevail on the Title IX claim against DCS, the Adamses had to
show, among other things, that DCS acted with deliberate indiffer-
ence. The court concluded that DCS’s response to both the specific
instances of bullying that McKenzie faced and the general threat of
bullying did not amount to deliberate indifference.
As to the Adamses’ Title VI claim against DCS and their
equal protection claims against DCS, Kallhoff, and Infinger, the dis-
trict court explained that the Adamses had to show that the defend-
ants acted with an intent to discriminate. In the context of this case,
they had to show that DCS maintained a policy or custom of ignor-
ing student-on-student bullying. The court found no evidence that
DCS acted with an intent to discriminate.
Turning to the Adamses’ substantive due process claims, the
court concluded that the Adamses failed to show a substantive due
process violation because DCS had no constitutional duty to pro-
tect McKenzie. Further, the district court explained that in a non-
custodial setting, conduct by a government actor must be charac-
terized as arbitrary or conscience-shocking to arise to the level of a
substantive due process violation. The court then concluded that
the defendants’ conduct was not arbitrary or conscience-shocking
to give rise to a constitutional deprivation.
Finally, in considering the Adamses state-law tort claims, the
court ruled that the claims against Kallhoff and Infinger were
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22-11317 Opinion of the Court 13
barred by state-agent immunity.9 In any event, the court con-
cluded, under Alabama law, Kallhoff and Infinger’s actions were
not the proximate cause of McKenzie’s injury because her death by
suicide cut off any causal link and barred any tort liability.
The Adamses timely appealed.
II. STANDARDS OF REVIEW
We review an order granting summary judgment de novo
and apply the same legal standards as the district court. Citizens for
Smart Growth v. Sec’y of Dep’t of Transp., 669 F.3d 1203, 1210 (11th
Cir. 2012). Summary judgment is appropriate when the moving
party establishes there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); see Greenberg v. BellSouth Telecomms, Inc.,
498 F.3d 1258, 1263 (11th Cir. 2007). At the summary judgment
juncture, the court does not “weigh the evidence and determine
the truth of the matter,” but solely “determine[s] whether there is
a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986). Only disputes about material facts will preclude the
granting of summary judgment. Id. at 248. We are required to view
the facts in the light most favorable to the non-moving party. Hill
v. Cundiff, 797 F.3d 948, 967 (11th Cir. 2015).
9 The district court also determined that all the defendants were entitled to
state-agent immunity, but on appeal, the Adamses challenge the court’s deter-
mination only as to Kallhoff and Infinger. Thus, we do not consider whether
the other defendants were entitled to immunity. See United States v. Campbell,
26 F.4th 860, 874–75 (11th Cir. 2022) (en banc).
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14 Opinion of the Court 22-11317
A grant of summary judgment on state-agent immunity
grounds is also reviewed de novo. Id.
III. DISCUSSION
On appeal, the Adamses argue that the district court erred
in granting summary judgment to the defendants on all claims. On
their federal Title IX, Title VI, equal protection, and substantive
due process claims,10 they argue that they presented sufficient evi-
dence to raise a genuine dispute of fact on each of the required el-
ements of each claim. In support of their Alabama wrongful death
claims, the Adamses argue that Kallhoff and Infinger were not en-
titled to state-agent immunity because their conduct did not in-
volve the exercise of judgment or discretion in performing their
official duties.
We begin by addressing the Adamses’ federal claims. We
then turn to their wrongful death claims under Alabama law.
A. Title IX, Title VI, and 42 U.S.C. § 1983 Equal Protection
and Substantive Due Process Claims
The Adamses argue that the district court erred in granting
the defendants summary judgment on their federal claims because
there is at least a genuine dispute of fact on each of the required
10 The Adamses brought both their equal protection and substantive due pro-
cess claims under 28 U.S.C. § 1983. Because our analysis of an equal protection
claim mirrors that of a Title VI claim, see Elston v. Talladega Cnty. Bd. of Educ.,
997 F.2d 1394, 1405 n.11 (11th Cir. 1993), we examine the equal protection and
Title VI claims together and the § 1983 substantive due process claim sepa-
rately.
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22-11317 Opinion of the Court 15
elements of each claim. As we will explain, the Adamses must show
deliberate indifference to sustain their Title IX and Title VI claims,
intentional discrimination to sustain their equal protection claims,
and arbitrary or conscience-shocking conduct to sustain their sub-
stantive due process claims. Because the Adamses failed to present
sufficient evidence to show that the defendants’ conduct satisfied
any of these standards, the district court properly granted sum-
mary judgment.
1. Title IX Claim
Under Title IX, “[n]o person . . . shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be sub-
jected to discrimination under any education program or activity
receiving [f]ederal financial assistance.” 20 U.S.C. § 1681. When a
recipient of federal funds intentionally violates Title IX’s prohibi-
tion on discrimination, it may be held liable for money damages.
See Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 74–75 (1992).
In Davis ex rel. LaShonda D. v. Monroe County Board of Educa-
tion, the Supreme Court recognized that Title IX creates a private
right of action for “student-on-student sexual harassment.”
526 U.S. 629, 639, 646–47 (1999). To hold a Title IX funding recipi-
ent11 accountable for student-on-student sex harassment, a plaintiff
must establish that the public school was “deliberately indifferent
to sexual harassment, of which it has actual knowledge, that is so
11 It is undisputed that DCS is an education program receiving federal financial
assistance.
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16 Opinion of the Court 22-11317
severe, pervasive, and objectively offensive that it can be said to
deprive the victim of access to the educational opportunities or
benefits provided by the school.” Hill, 797 F.3d at 968 (alterations
adopted).12
We conclude that no reasonable jury could find that the de-
fendants acted with deliberate indifference in response to the
known acts of bullying against McKenzie. Thus, we can resolve this
claim based solely on the failure to show deliberate indifference,
without reaching the claim’s other elements. A school is deliber-
ately indifferent only where its response, or lack thereof, to stu-
dent-on-student harassment or discrimination is “clearly unreason-
able” in the light of known circumstances. Davis, 526 U.S. at 648.
To act with deliberate indifference, a school district or official
“must know of and disregard an excessive—that is, an extremely
great—risk to the victim’s health or safety.” L.S. ex rel. Hernandez v.
Peterson, 982 F.3d 1323, 1330 (11th Cir. 2020).
A school district is not deliberately indifferent simply be-
cause the measures it takes to stop the harassment or discrimina-
tion ultimately are ineffective. See Sauls v. Pierce Cnty. Sch. Dist.,
12 Said differently, a plaintiff must prove four elements to establish a Title IX
violation: (1) the defendant is a federal funding recipient; (2) an appropriate
person had actual knowledge of the alleged harassment or discrimination; (3)
the defendant was deliberately indifferent to the alleged harassment or dis-
crimination; and (4) the harassment or discrimination was so severe, perva-
sive, and objectively offensive that it effectively barred the victim’s access to
an educational opportunity or benefit. Williams v. Bd. of Regents of Univ. Sys. of
Ga., 477 F.3d 1282, 1294–98 (11th Cir. 2007).
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399 F.3d 1279, 1285 (11th Cir. 2005); see also Doe v. Taylor Indep. Sch.
Dist., 15 F.3d 443, 456 n.12 (5th Cir. 1994) (en banc) (explaining that
a school official may not be deliberately indifferent where it
“warn[s] the state actor, notif[ies] the student’s parents, or re-
mov[es] the student from the teacher’s class” even if those re-
sponses are ineffective). Rather, to rise to the level of deliberate in-
difference, the response to the harassment or discrimination must
amount to “an official decision . . . not to remedy the violation.”
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998); accord
Doe v. Sch. Bd. of Broward Cnty., 604 F.3d 1248, 1259 (11th Cir. 2010).
Deliberate indifference is an exacting standard; neither negligence
nor mere unreasonableness is enough. Davis v. Carter, 555 F.3d 979,
983 (11th Cir. 2009).
The Adamses argue that DCS was deliberately indifferent
(1) by ignoring the instances of bullying directed at McKenzie and
(2) by failing to adopt anti-bullying policies as required by the Ja-
mari Terrell Williams Act. To evaluate each argument, we take a
close look at the facts in evidence.
First, we consider DCS’s response to the instances of known
bullying13 directed at McKenzie. For starters, Mims knew that
13 For purposes of this appeal, we assume that the harassment McKenzie en-
dured was the type of harassment included within the broad sweep of Title IX.
N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521 (1982) (“There is no doubt that
if we are to give Title IX the scope that its origins dictate, we must accord it a
sweep as broad as its language.” (alteration adopted and internal quotation
marks omitted)); Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 810
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18 Opinion of the Court 22-11317
McKenzie was being bullied. After Mims heard E.C. call McKenzie
“n*****,” she disciplined him by writing him up and sending him
to the office. After she discovered the profanity-laden note ex-
changed between E.C. and McKenzie, she again wrote E.C. up, and
he received a day of in-school suspension. All of these punishments
were in line with DCS’s Code of Conduct. True, McKenzie was
written up for this incident along with E.C. But there is no indica-
tion that Mims “[knew] of and disregard[ed]” an excessive risk to
McKenzie’s health and safety by responding the way that she did.
Hernandez, 982 F.3d at 1330. A reasonable jury could not conclude
that Mims’s actions, which included writing E.C. up, sending him
to the office, and assigning him a day of -in-school suspension, were
unreasonable in the light of the known circumstances. Thus, we
cannot say that Mims’s response amounted to an “official deci-
sion . . . not to remedy the [harassment].” Gebser, 524 U.S. at 290.
We conclude that the Adamses have raised no genuine issue of ma-
terial fact that Mims was deliberately indifferent to the instances of
bullying of which she was aware.
Stewart, too, knew about the bullying directed at McKenzie.
Once she was informed that McKenzie was being bullied, Stewart
put in place a safety plan, which allowed McKenzie to leave the
classroom any time she felt threatened by the bullying. After the
safety plan was implemented, Janice noticed no unusual behavior
in McKenzie that would have prompted Janice to follow up with
(11th Cir. 2010) (“Calling a female colleague a ‘bitch’ is firmly rooted in gen-
der. It is humiliating and degrading based on sex.”).
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22-11317 Opinion of the Court 19
Stewart. We acknowledge that there is no indication in the record
that McKenzie used the safety plan or that it was effective in curb-
ing the bullying. Perhaps a more effective response could have
been implemented—but the deliberate indifference standard does
not turn on effectiveness. Stewart’s decision to implement the
safety plan represented a reasonable attempt to rectify the bullying.
Therefore, even if in hindsight something more effective could
have been done, her response to the bullying does not amount to
deliberate indifference.14
Second, we address the Adamses’ argument that DCS was
deliberately indifferent through its failure to implement an anti-
bullying plan consistent with the Jamari Terrell Williams Act. The
Act was enacted in response to the suicide of Williams, who was
bullied online by students in his class. Ala. Code § 16-28B-4. The
Act requires each public school to “develop plans or programs, in-
cluding, but not limited to, peer mediation teams, in an effort to
encourage students to report and address incidents of bullying, vi-
olence, or threats of violence.” Id. § 16-28B-4(d). Under the Act, at
the beginning of the school year, a school must provide program-
ing to faculty and students on “the issue of bullying and school vi-
olence with faculty and students.” Id. The programming must “in-
clude a discussion of available resources” and “encourage the re-
porting of incidents of bullying.” Id. In addition, each school must
“periodically convene a committee of faculty and students to
14 We find the evidence insufficient to establish a genuine issue of material fact
that any other defendant was aware that McKenzie was being bullied.
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20 Opinion of the Court 22-11317
review and discuss the issue of bullying and make recommenda-
tions to school administrators regarding school climate, safety, and
bullying.” Id. The Act went into effect on June 1, 2018. In response
to the Act, the Alabama State Department of Education dissemi-
nated a model plan to all Alabama public school systems in Decem-
ber 2018. DCS adopted the model plan in February 2019.
Although DCS did not formally adopt a plan compliant with
the Act until about eight months after the Act went into effect, the
record shows that it was normal practice for DCS to wait for and
then adopt model plans disseminated by the State Department of
Education. Further, even before DCS adopted the model plan, it
had in place its own annual Back to Basics training that addressed
the topics of bullying and suicide prevention. There is no evidence
that the training was intentionally or recklessly deficient or that the
decision to wait for the model plan was a reckless decision. A rea-
sonable jury therefore could not conclude that DCS’s decision to
wait to adopt a model policy, especially while having an anti-bully-
ing policy already in place, was clearly unreasonable.
What happened to McKenzie was beyond tragic. The evi-
dence of record does not establish any action or lack of action by
DCS or any of the named individual defendants that amounted to
deliberate indifference, however. So the district court did not err in
granting summary judgment to the defendants on the Adamses’
Title IX claim.
Because we resolve the Adamses’ Title IX claim on the de-
liberate indifference element, we do not reach the other elements.
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22-11317 Opinion of the Court 21
We feel it important to note, however, that we reject the defend-
ants’ assertion that the repeated taunting of a nine-year-old girl, in-
cluding sexualized and racialized comments on her skin tone, hair,
and physical appearance, and name calling such as “n*****,” “black
bitch,” “dumb black bitch,” and “pussy ass bitch” amounts to “at
most, only childish name-calling and teasing that is inevitable
among elementary school students” or “adolescent teasing.” Ap-
pellees’ Br. at 4–5, 7. We have no doubt that such conduct at least
raises a question of fact whether the harassment and bullying
McKenzie faced was severe and pervasive.
2. Title VI and Equal Protection Claims
Next, we consider the Adamses’ Title VI and equal protec-
tion claims. Under Title VI, “[n]o person . . . 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 [f]ederal financial assistance.”
42 U.S.C. § 2000d. The Fourteenth Amendment’s Equal Protection
Clause provides that “[n]o State shall . . . deny to any person within
its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. We have recognized that Title VI provides no
more protection than the Equal Protection Clause does. Elston v.
Talladega Cnty. Bd. of Educ., 997 F.2d 1394, 1405 n.11 (11th Cir.
1993).
To establish that a defendant is liable under Title VI or the
Equal Protection Clause, a plaintiff must prove discriminatory in-
tent. Burton v. City of Belle Glade, 178 F.3d 1175, 1202 (11th Cir.
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22 Opinion of the Court 22-11317
1999); Elston, 997 F.2d at 1406. Discriminatory intent may be estab-
lished by evidence of a “history of discriminatory official actions.”
Elston, 997 F.2d at 1406. To hold a supervisory official or govern-
ment entity liable, a plaintiff must show that the violation resulted
from a custom or policy put in place by the supervisor or the entity.
See Fundiller v. City of Cooper City, 777 F.2d 1436, 1442–43 (11th Cir.
1985). The discriminatory practice must be so widespread as to put
the supervisor or entity on notice of the need to act. Id. at 1443.
Specific to their Title VI claim, the Adamses argue that DCS
was deliberately indifferent to the race-based harassment that
McKenzie faced. Their argument assumes that Title VI creates a
private cause of action for student-on-student race-based harass-
ment and that a school district can be held liable if it was deliber-
ately indifferent to the harassment. Whether deliberate indiffer-
ence is the standard applicable to a Title VI claim is a question of
first impression in our circuit. Other circuits have held that the de-
liberate indifference standard applicable to Title IX claims also ap-
plies to Title VI claims. Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d
655, 664–71 (2d Cir. 2012) (applying deliberate indifference stand-
ard to Title VI claim); Blunt v. Lower Merion Sch. Dist., 767 F.3d 247,
271–73 (3d Cir. 2014) (holding that the Title IX deliberate indiffer-
ence standard is applicable to Title VI claims); Fennell v. Marion In-
dep. Sch. Dist., 804 F.3d 398, 408 (5th Cir. 2015) (same); Bryant v.
Indep. Sch. Dist. No. I-38 of Garvin Cnty., 334 F.3d 928, 934 (10th Cir.
2003) (same).
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22-11317 Opinion of the Court 23
Today we join these circuits in holding that to prevail on a
Title VI claim for student-on-student race-based harassment, a
plaintiff must prove that the defendants were deliberately indiffer-
ent to the harassment. Because Congress modeled Title IX after
Title VI, our conclusion is straightforward. Fitzgerald v. Barnstable
Sch. Comm., 555 U.S. 246, 258 (2009). The two statutes are parallel,
except that Title IX prohibits race-based discrimination whereas Ti-
tle VI prohibits sex-based discrimination. Gebser, 524 U.S. at 286.
The statutes operate in the same manner—“conditioning an offer
of federal funds on a promise by the recipient not to discriminate.”
Id. As a result, just like a school district engages in intentional dis-
crimination and is liable under Title IX when it is “deliberately in-
different to known acts of student-on-student sexual harassment,”
Davis, 526 U.S. at 646–47, a school district engages in intentional
discrimination and is liable under Title VI when it is deliberately
indifferent to known acts of student-on-student racial harassment.
This conclusion is consistent with Supreme Court decisions
that interpret “Title IX consistently with Title VI.” Barnes v. Gor-
man, 536 U.S. 181, 185 (2002); see Ingram v. Kubik, 30 F.4th 1241, 1258
(11th Cir. 2022). We therefore agree with the Tenth Circuit that
“the [Supreme] Court’s analysis of what constitutes intentional sex-
ual discrimination under Title IX directly informs our analysis of
what constitutes intentional racial discrimination under Title VI.”
Bryant, 334 F.3d at 934.
Notwithstanding the existence of a cause of action, the dis-
trict court properly granted summary judgment to the defendants
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24 Opinion of the Court 22-11317
on the Adamses’ Title VI claim. As we explained when applying the
same standard to their Title IX claim, they failed to submit evidence
that DCS acted with deliberate indifference to any known instances
of bullying directed at McKenzie.
In support of their equal protection claim, the Adamses ar-
gue that DCS, Kallhoff, and Infinger “created a pervasive policy,
custom, and practice of ignoring discriminatory harassment”
through their failure to implement policies required by the Wil-
liams Act and by failing to follow DCS’s own Code of Conduct.
Appellants’ Br. at 16. This claim, too, fails because the record does
not support that the defendants acted even with deliberate indiffer-
ence. It follows, then, that no reasonable jury could conclude the
defendants’ actions amounted to intentional discrimination—
which, in this context, would mean a pervasive practice or custom
of ignoring the bullying directed at McKenzie. Nor is there any in-
dication in the record that bullying or harassment was a wide-
spread problem at DCS or U.S. Jones Elementary School so as to
put the defendants on notice of the need to take action to prevent
or stop it. Thus, we cannot conclude that DCS, Kallhoff, and Infin-
ger acted or failed to act with an intent to discriminate.
3. Substantive Due Process Claims
Lastly, we review the Adamses’ substantive due process
claims under § 1983. Section 1983 provides a remedy against any
person who, acting under color of state law, deprives another of
rights protected by the Constitution. 42 U.S.C. § 1983. The Ad-
amses contend that the defendants deprived McKenzie of rights
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22-11317 Opinion of the Court 25
protected by the Due Process Clause of the Fourteenth Amend-
ment, which provides that “[n]o State shall . . . deprive any person
of life, liberty, or property without due process of law.” U.S. Const.
amend. XIV, § 1. The substantive component of the Due Process
Clause protects individual liberty against certain government ac-
tions regardless of the fairness of the procedures used to implement
them. Carter, 555 F.3d at 981–82. In non-custodial settings, such as
in public schools, conduct by a government actor will rise to the
level of a substantive due process violation only if the act can be
characterized as arbitrary or conscience-shocking in a constitu-
tional sense. Hernandez, 982 F.3d at 1330.
To rise to the “conscience-shocking level, conduct most
likely must be intended to injure in some way unjustifiable by any
government interest.” Carter, 555 F.3d at 982 (internal quotation
marks omitted and alterations adopted). In considering whether
conduct raises to the level of arbitrary or conscience-shocking, de-
liberate indifference, without more, is rarely a basis for substantive
due process liability in cases arising in the school context. Hill,
797 F.3d at 980; see also Hernandez, 982 F.3d at 1330 (expressing
doubt that deliberate indifference can ever be arbitrary or con-
science shocking in a non-custodial setting).
The Adamses argue that DCS, Kallhoff, and Infinger’s
“choice of indifference in regards to the Jamari Terrell Williams Act
was founded on preference rather than reason or thought and was
therefore, arbitrary by definition.” Appellants’ Br. at 19. Even if we
assume that deliberate indifference can rise to the level of arbitrary
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26 Opinion of the Court 22-11317
or conscience-shocking conduct—an issue we do not decide to-
day—the evidence simply does not support a finding that the de-
fendants were deliberately indifferent. Summary judgment there-
fore was due to be granted on the Adamses’ substantive due pro-
cess claims.15
To sum up, we conclude that a reasonable jury could not
find that DCS acted with deliberate indifference, that it intention-
ally discriminated against McKenzie, or that DCS, Kallhoff, or In-
finger’s actions were arbitrary or conscience-shocking. In turn, the
district court did not err in granting summary judgment to the de-
fendants on the Adamses’ Title IX, Title VI, equal protection, and
substantive due process claims.
B. Alabama Wrongful Death Tort Claims
The Adamses also challenge the district court’s grant of sum-
mary judgment on their Alabama wrongful death claims. They ar-
gue that the district court erred in concluding that Kallhoff and In-
finger are entitled to immunity under Alabama state law. Immun-
ity does not apply, according to the Adamses, because their claims
do not arise out of conduct which “involv[ed] the exercise of judg-
ment and discretion [by Kallhoff and Infinger] in performing their
official duties.” Appellants’ Br. at 25. Instead, the Adamses con-
tinue, Kallhoff and Infinger “did not implement the rules required
by the Act”; thus, they were not “engag[ing] in discretion in the
15 Because the defendants’ conduct was not arbitrary or conscience-shocking,
and thus did not amount to a constitutional violation, we need not address
whether the defendants were entitled to qualified immunity.
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22-11317 Opinion of the Court 27
application of such rules” and were acting beyond their scope of
authority. Id. We reject their argument.
Alabama law affords immunity from suit to state officials.
The state’s Constitution provides that “the State of Alabama shall
never be made a defendant in any court of law or equity.” Ala.
Const. art. I, § 14. The Alabama Supreme Court has extended this
sovereign immunity to a person acting as an agent of a municipal
board of education when the person is performing discretionary
duties or duties that require the exercise of judgment. Carroll ex rel.
Slaught v. Hammett, 744 So. 2d 906, 910 (Ala. 1999) (“[A] person who
acts as an agent of a county board of education shares in the State’s
sovereign immunity if the act complained of was committed while
that person was performing a discretionary act.”).
The Alabama Supreme Court thus has recognized that a
state agent is immune from civil liability when she “formulat[es]
plans [and] policies” and “exercis[es] judgment in . . . educating stu-
dents.” Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000); Ex parte
Nall, 879 So. 2d 541, 544 (Ala. 2003) (“Generally, State agents are
afforded immunity from civil liability when the conduct made the
basis of the claim is based on the exercise of judgment in supervis-
ing and educating students.”). The Court has held that a school ad-
ministrator was entitled to state-agent immunity where she “negli-
gently failed to exercise proper safety measures, to monitor school
equipment, to maintain safety precautions, and to institute safety
measures,” Louviere v. Mobile Cnty. Bd. of Educ., 670 So. 2d 873, 877
(Ala. 1995), noting that school administrators are entitled to
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28 Opinion of the Court 22-11317
immunity when “formulating policies,” Ex parte Trottman, 965 So.
2d 780, 786 (Ala. 2007).
Here, the Adamses argue that Kallhoff and Infinger are not
entitled to immunity because the Williams Act mandated that Ala-
bama public schools implement plans addressing bullying. As a re-
sult, the Adamses contend, Kallhoff and Infinger did not have any
discretion whether to implement such a plan. According to the Ad-
amses, the “Alabama State Legislature removed any professional
discretion by mandating the schools [to] take action.” Appellants’
Br. at 25.
We agree with the district court that Kallhoff and Infinger
are entitled to immunity because the Adamses seek to hold them
liable for conduct that involved the performance of official duties
to supervise and educate students. As the superintendent of DCS,
Kallhoff addressed anti-bullying and suicide prevention with teach-
ers and staff as part of the school’s annual Back to Basics training.
Once the Williams Act went into effect, DCS and Kallhoff decided
to wait until the State Department of Education disseminated a
model plan to the school systems. In the interim, however, DCS
relied on its current anti-bullying training. And Infinger, as
Kallhoff’s subordinate, acted under his direction to carry out the
existing anti-bullying plan, which was within the performance of
her official duties as principal. Central to the Adamses’ claim is that
Kallhoff and Infinger are liable because they decided to rely on their
own anti-bullying training while waiting for the State Department
of Education to promulgate its model plan. But state-agent
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22-11317 Opinion of the Court 29
immunity applies to claims arising out of this type of conduct. See
Ex parte Cranman, 792 So. 2d at 405. And so we agree with the dis-
trict court that Kallhoff and Infinger were entitled to state-agent
immunity from the Adamses’ wrongful death claims.
The Adamses nevertheless argue that Kallhoff and Infinger
should not be entitled to state-agent immunity because an excep-
tion applies. Alabama law recognizes several exceptions to state-
agent immunity. As relevant here, state-agent immunity does not
apply when a school official acts beyond her authority. Id. A state
agent acts beyond her authority when she “fails to discharge duties
pursuant to detailed rules or regulations, such as those stated on a
checklist.” Ex parte Est. of Reynolds, 946 So. 2d 450, 452 (Ala. 2006)
(alteration adopted and internal quotation marks omitted).
The Adamses argue that by using their discretion to classify
instances of bullying, Kallhoff and Infinger acted beyond their au-
thority. To support their argument, the Adamses point to the DCS
Code of Conduct, which sets forth a checklist definition for identi-
fying and disciplining bullying, and argue that the checklist does
not allow for discretion in a school official’s identification of, and
discipline for, bullying. According to the Adamses, when Kallhoff
and Infinger failed to classify E.C.’s aggressive acts toward McKen-
zie as bullying and failed to discipline him in line with the Code of
Conduct, they acted beyond their authority. But the record con-
tains no indication that either Kallhoff or Infinger had any direct
interactions with McKenzie or were a part of the disciplinary pro-
cess for E.C. In the absence of such evidence, we cannot conclude
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30 Opinion of the Court 22-11317
that either Kallhoff or Infinger acted beyond their authority. Ac-
cordingly, no exception to state-agent immunity applies to
Kallhoff’s or Infinger’s conduct.16
IV. CONCLUSION
Despite our deepest sympathy for the tragic loss of McKen-
zie Adams, for the reasons we have explained, the district court did
not err in granting summary judgment on the Adamses’ federal and
state claims. We affirm the judgment of the district court.
AFFIRMED.
16 The district court also concluded that Kallhoff and Infinger were entitled to
summary judgment on the state-law tort claims because McKenzie’s suicide
was an intervening cause that made their actions not a proximate cause of any
injury. Because we affirm based on state-agent immunity, we do not address
the district court’s alternative conclusion about proximate causation.
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