                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0026n.06

                                           NO. 10-1636

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                  Jan 09, 2012
CASSANDRA WILLIAMS, et al.,                          )                      LEONARD GREEN, Clerk
                                                     )
       Plaintiffs-Appellees,                         )       ON APPEAL FROM THE UNITED
                                                     )       STATES DISTRICT COURT FOR
v.                                                   )       THE EASTERN DISTRICT OF
                                                     )       MICHIGAN
PORT HURON SCHOOL DISTRICT, et al.,                  )
                                                     )
       Defendants-Appellants.                        )


       Before: MOORE and ROGERS, Circuit Judges; and HOOD, District Judge.*

       HOOD, District Judge. Defendants-Appellants filed this interlocutory appeal following the

district court’s denial of qualified immunity to individual Defendants Michael Jones, Former

Superintendent of the Port Huron School District; Craig Dahlke, Port Huron Northern High School

Principal; and Port Huron Area School District Board of Education members, Jeffrey Stout, Thomas

Crosby, Rasha Demashkieh, Geoffrey Hering, Charles Meeker, and Anna Kovar. Plaintiffs claim

that these individual defendants violated Plaintiffs’ right to equal protection under the Fourteenth

Amendment when they acted with deliberate indifference to student-on-student racial harassment

in violation of 42 U.S.C. § 1983.

       For the reasons that follow, Defendants Jones, Dahlke, and the individual school board

members were entitled to qualified immunity. Accordingly, we REVERSE the District Court’s

       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
decision with respect to Dahlke, Jones, and the individual school board members and REMAND

this matter for further proceedings.

I. Procedural Background

        In their Complaint, the parents or guardians of twelve then-students1 (“Plaintiffs”) of Port

Huron Northern High School (“Port Huron Northern”) allege that the students were deprived of an

equal educational opportunity as the result of "student on student" racial harassment experienced at

the school in violation of Title VI, state law, and 42 U.S.C. §1983.2 Defendants filed this

interlocutory appeal following the district court's denial of qualified immunity to them with respect

to Plaintiffs’ claim that these individual defendants violated 42 U.S.C. §1983 by being deliberately

indifferent to student on student racial harassment in such a way as to deny Plaintiffs’ right to equal

protection under the Fourteenth Amendment. Defendants also argue that this Court should exercise

pendent appellate jurisdiction and review the trial court's decision to deny summary judgment on the

Plaintiffs’ remaining claims under Title VI of the Civil Rights Act of 1964 (“Title VI”); the

Michigan Elliott Larsen Civil Rights Act, MCL 37.2102(a), et seq.; the Michigan Equal

Accommodation Act, MCL 750.146, et seq.; and claims of intentional infliction of emotional

distress.




        1
               While Darcy Hayes was substituted as a party after she reached the age of majority,
the remaining students continue to be represented by a parent or guardian. For ease of reference,
however, the students will collectively be referred to as “Plaintiffs.”
        2
               As discussed more fully below, the Court declines to exercise pendent appellate
jurisdiction over the trial court’s decision to deny summary judgment on the Title VI and state law
claims.
II. Factual Background

        The Port Huron Area School District has two primary high schools, Port Huron Northern and

Port Huron High School (“Port Huron High”). Plaintiffs’ allegations focus on events occurring

during 2003 through 2006, but they report a history of racial harassment dating at least back to the

1990s. Eight student Plaintiffs remain in the action - Phillip Jones, Jansyn Southgate Smith, Natasha

Thames, Joshua Portis, Gregory Harrison, Zenia Hayes, Kevina Jackson, and Darcy Hayes.

        As Plaintiffs tell it, the time period from 2003 to 2006 was fraught with racial tension at Port

Huron Northern. In 2003, the principal of Port Huron Northern was Cheryl Wojtas (“Wojtas”). In

addition to the principal, there were three assistant principals, Marla Philpot (“Philpot”), Chip

Mossett and Gregg Wagner, all of whom had authority to suspend and recommend expulsion for

racial harassment. It is undisputed that administrators were aware of peer on peer as well as other

forms of racial harassment. Indeed, administrators were not immune from this onerous conduct. For

instance, when she was hired in 2003, Philpot was the only black professional employee at the

school, and, within her first week at Port Huron Northern, she found Ku Klux Klan paraphernalia

and white supremacist literature placed on or around her desk. That school year, both students and

parents called Philpot a “nigger,” including one parent who came to the school using racial slurs and

seeking to assault Philpot after Philpot disciplined her son. It is against this backdrop that we

consider the plaintiffs’ claims.

        Students at the school experienced similar harassment, even in front of their teachers. For

instance, Plaintiff Darcy Hayes’ Algebra teacher was aware that another student said to him, “Fuck

you, fat nigger,” but there was no investigation of the incident or discipline of the offending student.

Nonetheless, Hayes started giving Principal Wojtas and Assistant Principal Philpot the names of


                                                   3
students using racial slurs, but Wojtas told him there was nothing she could do unless she heard the

statements. Hayes went to Wojtas fifteen to twenty times over a period of a year and a half. On

numerous occasions, according to the plaintiffs, teachers overheard use of the term “nigger” between

students, but did not acknowledge its use in any way. During this time there were also several

student vehicles that displayed Confederate flags, despite complaints that the flags were offensive.

There were also several instances of vandalism on school grounds involving racial slurs as graffiti.

       Parents approached several administration members in hopes of improving the situation.

During a conversation related to the harassment, Philpot told Darcy Hayes’ mother, Belinda Rivera

(“Rivera”), that “there was racism there, she was aware of it, but there was not much that she could

do about it, because she had made her concerns” known to Wojtas, who had not responded. Prior

to 2005, Patsy Chapman, the mother of Plaintiff Josh Portis, who was regularly called a “nigger”

and otherwise harassed due to his race, often resulting in physical violence, complained to Assistant

Principal Mossett. Assistant Principal Mossett said it was difficult to do anything because it was

Portis’ word against the other student(s).

       From 2003 to 2005, while Wojitas was principal, little, if anything, was done to investigate

numerous allegations of the use of racial slurs between students or defacement of school property

with racially offensive language, despite efforts by students and parents to keep Wojitas and the

assistant principals informed of these incidents. In fact, Port Huron Northern has not produced any

records of investigations or disciplinary actions taken regarding any of the incidents that occurred

between 2003-2005.

       Things began to change in 2005. Jones became the Superintendent of the district for the

2005-2006 school year. Dahlke was hired as principal of Port Huron Northern shortly after the start


                                                 4
of the 2005 school year, once Wojtas was promoted to Assistant Superintendent.3 In June 2005, the

Board approved a Student Code Handbook, which included a policy addressing harassment

perceived to be motivated by race. For a first time violation, the policy required that parents be

notified of their child’s offending behavior, that the parties take part in a conference, and that the

responsible student serve time in detention and possibly face more severe discipline. There is no

evidence that there was a similar policy in place before June 2005. There is also little evidence that

the policy, once in place, was strictly enforced.

       On October 26, 2005, within days of Dahlke’s start date, a racist poster was left on Tiara

Long’s locker. The poster included a Confederate flag and the words “Rebel - The south will rise

- Death to all Niggers,” and “If this offends you screw off, & get bent!” The next day, she found

another racist note inside her locker. Shortly thereafter, the word “nigger” was scrawled on Long’s

locker. Dahlke removed the slur and, in an effort to catch the responsible party, Dahlke placed a

hidden camera in a nearby classroom and personally monitored the area. His efforts were not

successful. Dahlke and Long’s mother contacted police to investigate the incident.4

       On November 4, 2005, Dahlke recorded a video and played it over the school’s in-house

video monitor. He displayed the racist poster found in Long’s locker and reminded the students the

behavior was inappropriate. Dahlke also asked students to come forward if they had information



       3
                 While Dahlke was not affiliated with Port Huron Northern as principal until 2005,
he did teach at the high school in the 1990's and served as an assistant principal there between 1996-
2001.
       4
                 Dahlke then received a letter from Long’s parents telling him their daughter had heard
daily racial slurs during the prior school year, which had been reported. Dahlke acknowledged that
he knew that “things had been going on with the ‘word’ since the prior school year” based on
information received from Philpot.

                                                    5
about the person responsible for the drawing. Two students came forward. The drawing apparently

had been stolen from the artist, and another person placed it in Long’s locker. The artist, who by that

time was incarcerated in a juvenile detention facility on unrelated offenses, was expelled. However,

the individual responsible for putting the poster in the locker was never identified.

       Reports of the use of racial slurs between students, in the hallways and in front of teachers

who failed to discipline the offending students, continued during the 2005 - 2006 school year. There

were also additional complaints of racial slurs and Confederate flags drawn in textbooks and used

as graffiti around the school. In one instance, Kevina Jackson found a Confederate flag drawn in her

textbook. Her teacher, Ms. Kearns, “looked at it and she told me that wasn't the first time she had

seen something like that.” Jackson had to continue using the book.

       Finally, on November 7, 2005, Philpot wrote Dahlke:

       A number of African American students have expressed to me their desire to take
       matters into their own hands re: the racial climate of the school. . . . [W]e should
       meet with them.

Shortly thereafter, on November 8, 2005, Dahlke held a meeting for minority students. The group

discussed how some of the Plaintiffs used “nigger” and its derivatives at school. Dahlke surmised

that this led white students to also use the word. Dahlke told the minority students not to use the

word and to report its use when they heard it. Darcy Hayes testified that when white students learned

of the meeting, that some cracked jokes, asking if it was a “nigger meeting” or “only niggers

allowed.”

       Ultimately, Philpot formed a group of concerned parents and community members to advise

Dahlke and brainstorm ideas to address the racist locker incidents and broader diversity issues at the

school. Along with Philpot and Dahlke, the group included the local NAACP President, a retired


                                                  6
principal, a staff member, both of whom were black, a pastor, and the parents of some of the student

Plaintiffs. There is no dispute that Dahlke approved of and participated in the group.

       Also, shortly after the locker incident, a staff member advised Dahlke that several vehicles

in the student parking lot had depictions of Confederate flags on or inside the vehicles. Dahlke

determined the identity of the drivers of those vehicles and immediately sent them to their cars to

remove or cover the stickers so that they were not visible. When Dahlke saw the Confederate flag

on students’ clothing, he directed them to remove the offending item or face disciplinary action.

This occurred on several occasions. However, there is no evidence that any of these students were

disciplined or that their parents were notified of their behavior.

        Beginning in September 2005, Chapman began having conversations with Superintendent

Jones about racial slurs used at the school, giving several examples and explaining that both her sons

heard the word “nigger” in school. She had one or two face-to-face conversations, and one or two

phone conversations with Jones about the racial slurs. When Chapman saw no change, she decided

to go to the School Board. On November 21, 2005 and December 19, 2005, Chapman addressed the

Board regarding persistent racial harassment at Port Huron Northern. Board members Crosby,

Demashkieh, Hering, Kovar, Meeker and Stout were present at both meetings. At the November

meeting, Chapman told the Board about (1) seeing and reporting the truck with the Confederate flag,

(2) the racial slurs, (3) continued use of the word “nigger,” and (4) racist graffiti. At the December

meeting, Chapman displayed a blow-up picture of the “Death to all Niggers” poster and distributed

copies to each board member. The Board did not direct any specific response to Chapman’s

concerns.




                                                  7
       The racial incidents continued in 2006. Indeed, in April or early May 2006, Philpot

discovered a textbook littered with racist statements and drawings. The first page of the list had

“KKK” and “I will kill all of you” written on it. The following page, entitled “Hit List,” had a noose

and a numbered list of names, including Plaintiffs Hayes, Natasha Thames, Kevina Jackson, Portis,

and Phillip Jones. Philpot’s name appeared third on the list. Other images and messages followed

a similar theme. The words “I beat Niggers to death with these” were coupled with an image of a

rowing oar, “Die bitch nigga” accompanied Philpot's name, as well as images of swastikas, and

numerous threats to kill African-Americans. Another page has the statement, “kill all the little

nigglets.” There was also a second “Hit List” in the book, which lists several Plaintiffs.

       Philpot found the book in her office and flipped through it before showing it to her secretary

and Dahlke, but for several days no one realized that the “Hit List” was in the book. Then, on or

about May 12, 2006, Dahlke told Jones of a threat received, which stated that someone was going

to shoot everyone on the “Hit List” contained in the book. Frightened for their safety, some

Plaintiffs stayed home for several days after discovery of the “Hit List.” The police were notified,

but their investigation did not identify the author of the “Hit List.”

       Port Huron Northern then hired a group of management consultants to conduct a study on

the learning environment at the school and provide findings and recommendations. In their report,

the consultants determined that the racially charged atmosphere developed at Port Huron Northern

over an extended period of time and was the result of a series of events, rather than a single episode.

The consultants opined that policies regarding student conduct, including racial slurs, were not

uniformly enforced by Port Huron Northern staff, and the absence of firm, decisive action

encouraged continued harassment.


                                                  8
       At the suggestion of the consultant team, Dahlke held three grade-level assemblies at the end

of the 2005 - 2006 school year, during which Dahlke reminded the students that everyone should be

treated with respect and dignity. Dahlke offered anonymity and protection from retaliation for

students who reported violators. Port Huron Northern experienced an increase in reports of

violations for the 2006 - 2007 school year. However, the racial slurs and incidents continued that

school year.5

II. Standard of Review

       “We review the denial of summary judgment on grounds of qualified immunity de novo

because application of this doctrine is a question of law.” McCloud v. Testa, 97 F.3d 1536, 1541 (6th

Cir. 1996) (citation omitted). Thus, a grant of summary judgment is proper “if the movant shows

that there is no genuine dispute as to any material fact and that the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden to show the

absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This

burden is met simply by showing the Court that there is an absence of evidence on a material fact

on which the nonmoving party has the ultimate burden of proof at trial. Id. at 325. The burden then

shifts to the nonmoving party to “come forward with some probative evidence to support its claim.”

Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). The Court’s function is not to

weigh the evidence, but to decide whether there are genuine issues for trial. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986); Multimedia 2000, Inc. v. Attard, 374 F.3d 377, 380 (6th Cir.



       5
          Plaintiffs argue that the exodus of black students from Port Huron Northern is the clearest
proof that racial harassment interfered with their education. For the 2006 - 2007 school year,
approximately 15 black students transferred from Port Huron Northern to Port Huron High. Several
others dropped out or left the school district altogether.

                                                 9
2004). In determining whether there are genuine issues of material fact, the evidence should be

construed in the light most favorable to the nonmoving party when deciding whether there is enough

evidence to overcome summary judgment. Anderson, 477 U.S. at 255; Summers v. Leis, 368 F.3d

881, 885 (6th Cir. 2004).

III. Discussion

        A. Jurisdiction

        Plaintiffs argue that this Court does not have jurisdiction to review this interlocutory appeal

because the defendants dispute some of the material facts. However, as this Court has frequently

observed, “[i]f . . . aside from the impermissible arguments regarding disputes of fact, the

defendant[s] also raise[ ] the purely legal question of whether the facts alleged . . . support a claim

of violation of clearly established law, then there is an issue over which this court has jurisdiction.”

Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005) (internal citations and quotation

marks omitted). Accordingly, this court will interpret the facts in a light most favorable to plaintiffs,

thereby “obviating the need to dismiss the entire appeal for lack of jurisdiction.” Id.

        B. Individual Defendants Dahlke and Jones were entitled to qualified immunity
        because they were not deliberately indifferent to racial harassment at Port
        Huron Northern.

        To determine whether the individual defendants are entitled to qualified immunity, the court

must determine whether, considering the allegations in a light most favorable to the injured party,

a constitutional right has been violated, and whether that right was clearly established at the time of

the alleged violations. See Saucier v. Katz, 533 U.S. 194, 201 (2001); Pearson v. Callahan, 555 U.S.

223, 232 (2009). Qualified immunity shields government officials from “liability for civil damages

insofar as their conduct does not violate clearly established . . . constitutional rights of which a


                                                   10
reasonable person would have known.” Humphrey v. Marbry, 482 F.3d 840, 846 (6th Cir. 2007)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The qualified immunity doctrine protects

“all but the plainly incompetent or those who knowingly violate the law.” Id. at 847.

       Plaintiffs allege that they were deprived of an equal educational opportunity as a result of

unchecked student on student racial harassment known to the defendants, in violation of the 14th

Amendment. However, to demonstrate a violation of the Fourteenth Amendment’s Equal Protection

Clause, Plaintiffs must demonstrate Defendants’ racially discriminatory intent with respect to their

response to the student on student harassment. Gant ex rel. Gant v. Wallingford Bd. of Educ., 195

F.3d 134, 139-40 (2nd Cir. 1999) (citations omitted). Defendants must have been deliberately

indifferent to the allegations of student-on-student racial harassment.6       See id. “Deliberate

indifference to discrimination can be shown from a defendant’s actions or inaction in light of known

circumstances.” Id. at 141.

        “[A] plaintiff may demonstrate defendant’s deliberate indifference to discrimination ‘only

where the recipient’s response to the harassment or lack thereof is clearly unreasonable in light of

the known circumstances’” Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 260 (6th Cir.

2000) (quoting Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648 (1999)). These claims do not

require proof that “the defendant fully appreciated the harmful consequences of that discrimination,

because deliberate indifference is not the same as action (or inaction) taken maliciously or

sadistically for the very purpose of causing harm.” Gant, 195 F.3d at 141.




       6
               The “deliberate indifference” standard for use in these cases is “substantially the
same” as the deliberate indifference standard applied by the Sixth Circuit to Title IX cases. Williams
v. Paint Valley Local Sch. Dist., 400 F.3d 360, 369 (6th Cir. 2005).

                                                 11
        i. Dahlke

        As an initial matter, the district court erred when it denied Dahlke qualified immunity.

Considering the facts construed in the plaintiffs’ favor, he was not deliberately indifferent to

student-on-student racial harassment and, therefore, did not violate the plaintiffs’ constitutional right

to equal protection under the law. See Gant, 195 F.3d at 140 (citing Murrell v. Sch. Dist. No. 1, 186

F.3d 1238, 1249-51 (10th Cir. 1999)). Determining whether such a violation exists is one of the two

steps in the qualified immunity analysis. See Pearson v. Callahan, 555 U.S. 223, 232 (2009).

        As the district court discussed, Dahlke made extensive efforts to combat student-on-student

racial harassment after being hired as principal in October 2005. For example, Dahlke (1) removed

a racial slur from a locker, (2) set up video surveillance in locations where harassment occurred, (3)

reported serious incidents of harassment to the police, (4) ordered students to remove depictions of

Confederate flags from their vehicles and clothing, (5) participated in a group dedicated to improving

the situation at Port Huron Northern, alongside other members of the community, (6) gave a

presentation over the school’s video system regarding inappropriate behavior, (7) expelled a student

who created a racist poster, (8) told minority students to report students who used racist language,

(9) told the superintendent about a threat related to a hit list, (10) hired management consultants to

conduct a study on the learning environment at the school, (11) investigated reported incidents of

harassment and (12) held three grade-level assemblies at which he told the students to treat everyone

with respect and dignity and offered anonymity and protection to students who reported violators.

Dahlke’s various efforts were not “clearly unreasonable in light of the known circumstances.”

Davis, 526 U.S. at 648.




                                                   12
       The plaintiffs argue, nonetheless, that Dahlke was deliberately indifferent because, among

other things, he did not mandate that all teachers take action in response to hearing slurs, did not

meet with students who overheard or were the subject of racial slurs, did not tell students how to file

a complaint of harassment, and did not discipline anyone for creating the hit list. Plaintiffs further

criticize Dahlke’s perceived delay in taking action. But the plaintiffs “do not have a right to

particular remedial demands,” and Dahlke was “not required to remedy [racial] harassment nor . .

. expel every student accused of misconduct.” Vance, 231 F.3d at 260 (internal citations and

quotation marks omitted). Dahlke was required to “merely respond to known peer harassment in a

manner that [was] not clearly unreasonable.” Davis, 526 U.S. at 649 (emphasis added). While there

appears to be some disagreement as to whether Dahlke should have responded to the incidents in a

different manner or taken further steps to identify the offending students, no one disputes that Dahlke

made efforts to address the racial harassment and solicited the assistance of others to formulate a

strategy. If “a school district has knowledge that its remedial action is inadequate and ineffective,

it is required to take reasonable action in light of those circumstances to eliminate the behavior.”

Vance, 231 F.3d at 261. Dahlke did so by attempting several strategies to address the problems at

Port Huron Northern.

       Given Dahlke’s numerous, varied responses to the racial harassment, he met the low

threshold necessary to show that he was not deliberately indifferent to the racial harassment at the

school. Even the district court acknowledged that “Dahlke made significant efforts to address the

racial issues at Port Huron Northern.” In short, Dahlke was not deliberately indifferent to the

student-on-student racial harassment and therefore, was entitled to summary judgment on the basis

of qualified immunity.


                                                  13
       ii. Jones

       Likewise, Jones, contrary to the determination by the district court, is also entitled to

qualified immunity. Again, given the facts construed in the plaintiffs’ favor, he was not deliberately

indifferent to student-on-student racial harassment and, therefore, did not violate the plaintiffs’

constitutional right to equal protection under the law. See Gant, 195 F.3d at 140 (citing Murrell, 186

F.3d at 1249-51).

       There is evidence in the record that Dahlke and Jones discussed the racial harassment at Port

Huron Northern, and that Jones was, at the very least, aware of Dahlke’s efforts to remedy the

situation. Jones approved the diversity training at Port Huron Northern, met with the local NAACP

and arranged for Assistant Superintendent Wojtas to assist Dahlke with issues relating to the “hit

list” incident. Moreover, he held two conferences to address parents’ concerns and arranged for the

consultants to evaluate the situation at Port Huron Northern. We are not persuaded that these actions

are “clearly unreasonable in light of the known circumstances.” Vance, 231 F.3d at 260.

       Plaintiffs argue that this was not enough, however, because Jones only took these actions

unwillingly, after he had ignored calls about the racial harassment from Chapman, Philpot and the

NAACP. In fact, Plaintiffs argue that Jones was “openly hostile” to requests for action to address the

problem. Just as the plaintiffs “do not have a right to particular remedial demands,” the law does

not require that Jones has to have a pleasant demeanor. Id. at 260. Plaintiffs do not dispute that

Jones took the actions listed above and Jones need “merely respond to known peer harassment in a

manner that [was] not clearly unreasonable” to show that he was not deliberately indifferent. Davis,

526 U.S. at 649. Jones efforts to remedy the longstanding racial harassment at Port Huron Northern

were not clearly unreasonable, and he is therefore entitled to qualified immunity.


                                                 14
       Having determined that neither Dahlke or Jones violated the plaintiff's right to equal

protection, we need not address whether the right was clearly established. See Binay v. Bettendorf,

601 F.3d 640, 646-47 (6th Cir. 2010) (citing Pearson, 555 U.S. at 236).

       C. Individual school board members were also entitled to qualified immunity.

       The individual school board members were also entitled to qualified immunity because

Plaintiffs have failed to show that the individual school board members violated a constitutional duty

owed to Plaintiffs. See Pearson, 555 U.S. at 232. Plaintiffs allege that the individual school board

members were deliberately indifferent to student-on-student racial harassment and claim that these

individuals’ inaction should subject them to liability. The school board members, however, cannot

be held liable as individuals because they had no duty to act as individuals. Our conclusion of course

does not mean that the same actions by persons with individual duties would be entitled to qualified

immunity on the facts of this case.

       This court has recognized that, under § 1983, an individual school board member can only

be held liable for failing to act if the law “empowers him with some legal obligation to act.” Doe

v. Claiborne Cnty., Tenn., 103 F.3d 495, 512 (6th Cir. 1996). No such obligation existed in this case

because, under Michigan law, the duties of a school board are imposed on the entire board and not

on the individual members. See MICH . COMP . LAWS § 380.11a. As in Claiborne, “the reality [is]

that these board members were unable to act, in a legal sense, except as constituent members of a

board majority.” Claiborne, 103 F.3d at 512. Since the plaintiffs have failed to articulate any duty

imposed on the school board members, as individuals, to address the student-on-student racial

harassment at Port Huron Northern, Plaintiffs’ § 1983 claim against the individual school board

members must be dismissed.


                                                 15
       D. Pendent appellate jurisdiction over the Title VI and state law claims.

       Finally, this Court declines to accept Defendants’ invitation to consider issues related to the

Title VI and state law claims, which are not subject to independent interlocutory review, because

they are not inextricably intertwined with the appealable claim and “review of these issues is not

necessary to ensure meaningful review.” Lowe v. Hamilton Cnty. Dept. of Job & Family Srvcs., 610

F.3d 321, 324 (6th Cir. 2010) (citing Swint v. Chambers Cnty. Comm’n, 514 U.S. 35 (1995)). The

factual underpinnings of the plaintiffs’ claims take place over a number of years and involve a

number of school administrators. Many of the facts relied upon for liability regarding the Title VI

claim took place during 2003-2005, which was prior to individual defendants Dahlke and Jones

service as Principal and Superintendent. Thus, the facts relating to the individual liability of the

defendants on the § 1983 claim are a smaller subset of the facts underlying the Title VI cause of

action against the school board as an entity. Moreover, Title VI liability may lie against the entity,

regardless of whether this Court finds the individual actors liable under § 1983. Our determination

has no bearing on the merits of Plaintiffs remaining claims. Thus, while the § 1983 claims subject

to interlocutory appeal are intertwined, they are by no means “inextricably intertwined” with the Title

VI and state law claims. Brennan v. Twp. of Northville, 78 F.3d 1152, 1157-58 (6th Cir. 1996); See

Tucker v. City of Richmond, Ky., 388 F.3d 216, 264 (6th Cir. 2004). Accordingly, we need not and

do not reach the plaintiffs’ pending Title VI and state law claims.

IV. Conclusion

       For the foregoing reasons, the district court’s order is REVERSED, and this matter is

therefore REMANDED for further proceedings consistent with this opinion.




                                                  16
        KAREN NELSON MOORE, Circuit Judge, dissenting. Because I would affirm the

judgment of the district court, I respectfully dissent.

                                       I. DALKE AND JONES

        Dalke and Jones appeal the district court’s denial of summary judgment on the grounds of

qualified immunity. At this stage of the litigation, Plaintiffs are not required to prove definitively

that Dalke and Jones are not entitled to qualified immunity; they “must show only that a reasonable

jury could” reach this conclusion. Patterson v. Hudson Area Sch., 551 F.3d 438, 450 (6th Cir. 2009).

Thus, Dalke and Jones bear the burden of demonstrating “that there is no genuine issue as to any

material fact” with respect to the qualified immunity defense, and we must “draw[] all reasonable

inferences in favor of the non-moving party” in deciding whether they have met this burden. Bishop

v. Hackel, 636 F.3d 757, 765 (6th Cir. 2011). The parties primarily dispute whether, as a matter of

law, Dalke and Jones were deliberately indifferent to the student-on-student racial harassment

suffered by Plaintiffs. I agree with the district court that, given the facts as pleaded by the Plaintiffs,

a reasonable jury could conclude that Dalke and Jones were deliberately indifferent to the harassment

at Port Huron Northern.

        The standard for deliberate indifference “announced by the Supreme Court is a ‘clearly

unreasonable response in light of the known circumstances.’” Vance v. Spencer Cnty. Pub. Sch.

Dist., 231 F.3d 253, 260 (6th Cir. 2000) (quoting Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629,

648 (1999)). In applying this standard, we have recognized that if an individual has “actual

knowledge that [his or her] efforts to remediate [harassment] are ineffective,” yet “continues to use

those same methods to no avail,” he or she can be deemed deliberately indifferent and, thus, not

entitled to qualified immunity. Id. at 261; see also Williams v. Paint Valley Local Sch. Dist., 400


                                                    17
F.3d 360, 364 (6th Cir. 2005). In a recent decision denying summary judgment to a defendant school

district in a Title IX case,7 Patterson v. Hudson Area Schools, 551 F.3d 438, 448 (6th Cir. 2009), we

held that when “a school district takes some action in response to known harassment, [but] further

harassment continues, a jury is not precluded by law from finding that the school district’s response

is clearly unreasonable.” Patterson recognized that when harassment is “severe and pervasive” and

has “lasted for years,” if the response taken is inadequate “to deter other students from perpetuating

the cycle of harassment . . . a reasonable jury certainly could conclude” that “the school district’s

standard and ineffective response to the known harassment became clearly unreasonable.” Id. at 447

(internal quotation marks omitted). Based on this precedent, I see no basis for concluding as a matter

of law that Dalke and Jones are entitled to qualified immunity.

       While it can be said that Dalke did more than his predecessor, who assertedly did nothing to

address the student-on-student racial harassment occurring at Port Huron Northern, I do not agree

with the majority’s characterization of Dalke’s efforts as “extensive,” “numerous,” and “varied.”

In fact, Dalke took even less action than the school district in Patterson, where at least perpetrators

were given effective reprimands that stopped them from engaging in future harassment. See id. at

448. Dalke’s actions, in contrast, consisted of half-hearted fruitless investigations and general

reminders to the student body, which yielded no real results. In fact, the harassment not only

continued under Dalke’s watch—it escalated. Given this escalation in combination with Dalke’s

knowledge of the history of pervasive harassment at the school, a jury could find that Dalke’s efforts

were clearly unreasonable. See id. at 450 (“[B]ecause [defendant] had knowledge that its methods


       7
        As the majority correctly recognizes, the Title IX deliberate-indifference standard is
analogous to that applied by the Sixth Circuit in the Section 1983 context. See Williams, 400 F.3d
at 369.

                                                  18
for dealing with the overall student-on-student sexual harassment of DP were ineffective, but

continued to employ only those methods, the [plaintiffs] have shown a genuine issue of material fact

as to the third part of the Davis test that is sufficient to defeat [defendant]’s motion for summary

judgment.”).

       I also conclude that there are genuine issues of material fact as to whether Jones’s response

as superintendent was clearly unreasonable. As with Dalke, Jones was aware of the ongoing

situation at Port Huron Northern from the beginning of his tenure and was in a position to ensure that

it was properly addressed. However, Jones took only minimal and ineffective steps to counter the

harassment and did nothing to adjust his approach when his efforts were unsuccessful. In fact, as

alleged by Plaintiffs, Jones was unresponsive and hostile to requests for more effective responses.

As with Dalke, given the history of harassment and its continued escalation and frequency, a

reasonable jury could conclude that Jones’s actions were “clearly unreasonable in light of the known

circumstances.” Id. at 450.

       Accordingly, I would affirm the district court’s judgment holding that Dalke and Jones are

not entitled to summary judgment on the grounds of qualified immunity.

                                      II. SCHOOL BOARD

       On appeal, Defendants argue for the first time that the individual school-board members are

entitled to qualified immunity because, under Michigan law, the school board can act only as a

collective entity and, therefore, its members cannot be held individually liable for its inaction.

Because this argument was not made before the district court, I would hold that it is waived.

       As the Supreme Court explained, “[w]hereas forfeiture is the failure to make the timely

assertion of a right,” and therefore still subject to plain-error review, “waiver is the intentional


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relinquishment or abandonment of a known right” leaving no correctable error in its wake. United

States v. Olano, 507 U.S. 725, 733 (1993) (internal quotation marks omitted). Qualified immunity

is an affirmative defense and, therefore, is considered waived and abandoned if not affirmatively

pleaded. Moore v. City of Harriman, 272 F.3d 769, 791-92 (6th Cir. 2001) (en banc) (citing Harlow

v. Fitzgerald, 457 U.S. 800, 815 (1982)); see also Kennedy v. City of Cleveland, 797 F.2d 297, 300

(6th Cir. 1986) (“Since [qualified] immunity must be affirmatively pleaded, it follows that failure

to do so can work a waiver of the defense.”).

       Under the waiver doctrine, this Circuit has declined to address the merits of an argument in

support of a qualified-immunity defense “raised for the first time on appeal unless the party shows

that refusal to consider the argument would result in a miscarriage of justice.” Perez v. Oakland

Cnty., 466 F.3d 416, 430 (6th Cir. 2006), cert. denied, 552 U.S. 823 (2007); see also Ruffino v.

Sheahan, 218 F.3d 697 (7th Cir. 2000) (holding that defendant waived argument that particular point

of law “was not clearly established” where defendant failed to present that argument to the district

court despite “rais[ing] other arguments supporting [qualified] immunity”). Defendants do not

address Plaintiffs’ arguments regarding waiver, let alone provide reasons why treating this argument

as waived would “result in a miscarriage of justice.” See Perez, 466 F.3d at 430. Accordingly, it

is not proper for this court to consider this argument or to reverse the district court’s denial of

qualified immunity to the individual school-board members on this ground.

       Accordingly, I would affirm the district court’s judgment holding that the school-board

members are not entitled to summary judgment on the grounds of qualified immunity.




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