                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 14-4565
                                     _____________

                    SHARELLE BRIDGES; ANTHONY BRIDGES,
                        on behalf of their son, D.B., a minor,
                        and individually on their own behalf,

                                                   Appellants

                                             v.

                           SCRANTON SCHOOL DISTRICT

                                     _____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civ. No. 3-12-cv-02531)
                      District Judge: Honorable A. Richard Caputo
                                    ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  November 6, 2015
                                  ______________

             Before: FUENTES, JORDAN, and VANASKIE, Circuit Judges

                                 (Filed: March 14, 2016)
                                     _____________

                                       OPINION*
                                     _____________


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
VANASKIE, Circuit Judge.

       This case involves alleged bullying, harassment, and racism by both students and a

teacher in elementary schools in the Scranton School District. Appellants argue that the

School District violated the Fourteenth Amendment and Title VI of the Civil Rights Act

of 1964. While we are sympathetic to Appellants’ arguments and dismayed by the

alleged conduct in this case, Appellants’ Fourteenth Amendment claims are ultimately

foreclosed by this Court’s decision in Morrow v. Balaski, 719 F.3d 160 (3d Cir. 2013) (en

banc), cert. denied, 134 S. Ct. 824 (2013). With respect to their Title VI claim,

Appellants failed to present sufficient evidence to defeat summary judgment. As a result,

we will affirm.

                                             I.

       We write primarily for the parties, who are familiar with the facts and procedural

history of this case. Accordingly, we set forth only those facts necessary to our analysis.

       Appellants Sharelle Bridges, Anthony Bridges, and their son D.B., are African-

Americans. During D.B.’s first grade year at Francis Willard Elementary School,

Appellants contend that D.B. was physically bullied and harassed on four occasions by

other students. Appellants met and spoke with the school’s principal various times about

this bullying, leading the principal to investigate the matter and change D.B.’s classroom.

After changing classrooms, Mrs. Bridges indicated the bullying was “off and on,” and

that “[s]omeone would shout something at [D.B.] or hit him, but . . . as far as being

jumped and kicked and stuff, it was resolved.” App. 0307.

                                             2
       The next year, Appellants moved to a new home and D.B. transferred to Robert

Morris Elementary School for the second grade. Despite changing schools, D.B. testified

that he was physically bullied by fellow students and that on one occasion he fought off

his attackers. Following the fight, D.B. testified that his second grade teacher, Mrs.

Wilcha, gave him detention, but no detention was given to the other students who started

the fight. D.B. also testified that another student tried to jab him in the eye with a pencil

during class, but Mrs. Wilcha did nothing in response.

       Appellants claim that Mrs. Wilcha verbally abused D.B. and treated him

differently than the other students in his class.1 Specifically, D.B. testified that Mrs.

Wilcha was mean to him; would unfairly give him detention; would write his name on

the board for no reason; threw or flung his desk on the floor on two occasions; turned the

contents of his desk over and yelled at him to pick his things up; called him a “dummy,”

“stupid,” and “lazy” on two occasions; made him sit by an open window on cold days

and a closed window on hot days; moved his crutches after he had sustained an ankle

injury and left him to “crawl” for them; and treated his strawberry allergy differently than

another student’s peanut allergy. In light of this treatment, D.B.’s parents had four

meetings with Mrs. Wilcha and the school principal, Ms. Damiano. At the meetings,

Mrs. Wilcha repeatedly referred to D.B. as a “gabber,” and at one meeting when D.B.

tried to explain himself, Mrs. Wilcha purportedly put her hand in his face suggesting that


       1
         In addition to D.B., who is African-American, there was one biracial student in
the class.
                                             3
he be quiet. At the final meeting, Mrs. Bridges informed Ms. Damiano that Mrs. Wilcha

threw D.B.’s desk on three occasions, but Ms. Damiano did not believe the claim. Mrs.

Bridges requested a classroom change for D.B., but Ms. Damiano denied the request.

       Mrs. Bridges never informed Ms. Damiano about Mrs. Wilcha’s verbal abuse, but

she did inform Mr. Louis Paris, the Director of Elementary Education, about Mrs.

Wilcha’s verbal abuse, bullying, and desk throwing. Mrs. Bridges told Mr. Paris that she

did not want D.B. to finish the last two weeks of school because D.B. was scared.2 Mr.

Paris informed Mrs. Bridges that D.B. had to finish his final two weeks of school because

it was a truancy issue. Nevertheless, Mr. Paris indicated that he would provide a

boundary exception to D.B. so D.B could attend school elsewhere for the last few days of

school. D.B.’s parents ultimately withdrew him from Robert Morris and enrolled him in

Connections Academy—a cyber school—where D.B. intends to stay until college.

       Appellants commenced this action against the School District, asserting claims

under 42 U.S.C. § 1983 (“Section 1983”) for deprivation of their substantive Due Process

rights and under Title VI of the Civil Rights Act of 1964 (“Title VI”), 42 U.S.C. § 2000d,

et seq., for alleged race discrimination. The District Court granted summary judgment to

the School District on both claims finding that the facts fail to support Appellants’

Section 1983 and Title VI claims. This appeal followed.


       2
          Mrs. Bridges asserts that during second grade, D.B. began to have nightmares, he
started wetting the bed, and he was frequently blinking. Additionally, a psychiatric
evaluation of D.B. notes that he developed anxiety and depressive symptoms in reaction
to the issues he went through during the second grade.
                                              4
                                             II.

       The District Court had jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331

and 1343(a)(3). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We

exercise plenary review over the District Court’s order granting summary judgment,

“applying the same test that the District Court . . . applied and viewing the facts in the

light most favorable to the nonmoving party.” Schneyder v. Smith, 653 F.3d 313, 318 (3d

Cir. 2011) (citation omitted). We will affirm a grant of summary judgment where our

review reveals “that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Interstate Outdoor Adver., L.P. v. Zoning Bd. of

Twp. of Mount Laurel, 706 F.3d 527, 530 (3d Cir. 2013) (quoting Fed. R. Civ. P. 56(a)).

                                             III.

       Appellants argue that the District Court improperly granted summary judgment.

For substantially the same reasons stated in the opinion issued by the District Court, we

conclude that, even drawing all permissible factual inferences in Appellants’ favor,

summary judgment was appropriate. We will address each of Appellants’ claims in turn.

                                  A. Section 1983 Claims

       In order to establish a claim under Section 1983, Appellants must demonstrate that

a person acting under color of state law engaged in conduct that violated a right protected

by the Constitution or laws of the United States. See Nicini v. Morra, 212 F.3d 798, 806

(3d Cir. 2000) (en banc). Appellants’ Section 1983 claim rests on the Due Process

Clause of the Fourteenth Amendment and invokes its substantive component, which

                                              5
“protects individual liberty against ‘certain government actions regardless of the fairness

of the procedures used to implement them.’” Collins v. City of Harker Heights, Tex., 503

U.S. 115, 125 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).

Specifically, Appellants contend that D.B. was deprived of his liberty interest and right to

bodily integrity as a result of (1) the student-on-student bullying in the first grade, and (2)

the alleged verbal abuse and teacher-on-student bullying in the second grade.3 As the

District Court correctly found, however, Appellants’ arguments are foreclosed by this

Court’s decision in Morrow.

       In Morrow, this Court stressed that the “Supreme Court has long established that

‘[a]s a general matter, . . . a State’s failure to protect an individual against private

violence simply does not constitute a violation of the Due Process Clause.’” 719 F.3d at

166 (quoting DeShaney v. Winnebago Cty. Dep’t of Social Servs., 489 U.S. 189, 197

(1989)). Nevertheless, this Court has recognized that “[i]ndividuals have a constitutional

liberty interest in personal bodily integrity that is protected by the Due Process Clause of

the Fourteenth Amendment.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 235 (3d Cir.

2008) (citing D.R. by L.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364,

1368 (3d Cir. 1992) (citation omitted)). The District Court correctly noted that

Appellants’ claims of bullying by students in the first grade and verbal abuse by a teacher


       3
        Appellants’ separate argument that Mr. and Mrs. Bridges’ due process rights
were impaired has been waived, as it was not argued in the briefs on appeal. See
Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375,
398 (3d Cir. 1994) (“An issue is waived unless a party raises it in its opening brief[.]”).
                                            6
in the second grade implicate different issues. Accordingly, we will address them

separately.

                      1. First Grade Student-on-Student Bullying

       Despite the fact that there is generally not a duty for the state to protect citizens

from the acts of private individuals, we acknowledged in Morrow that there are two

exceptions: litigants can state a claim under Section 1983 if they (1) adequately allege

“circumstances giving rise to a ‘special relationship’ . . . pursuant to DeShaney,” or (2)

“if their Complaint adequately alleges affirmative conduct on the part of the Defendants

to support the ‘state-created danger’ exception that we adopted in Kneipp [v. Tedder, 95

F.3d 1199 (3d Cir. 1996)].” 719 F.3d at 167. Appellants contend that the District Court

erred by finding that neither of these exceptions are applicable in this case. To the

contrary, the District Court correctly concluded that Appellants’ arguments are foreclosed

by this Court’s en banc decision in Morrow.

              a. The “Special Relationship” Exception is Not Applicable

       Appellants first contend that the first grade student-on-student bullying violated

D.B.’s substantive due process rights because a special relationship existed between the

school and D.B. In Morrow, this Court noted that “every other Circuit Court of Appeals

that has considered this issue in a precedential opinion has rejected the argument that a

special relationship generally exists between public schools and their students.” 719 F.3d

at 170 (collecting cases). Against this backdrop, the majority in Morrow found that

public schools, as a general matter, do not have a constitutional duty under the Due

                                               7
Process Clause to protect students from other students. In so doing, the majority

explicitly rejected the argument put forth by the Appellants here—that “a special

relationship arose from compulsory school attendance laws and the concomitant in loco

parentis authority and discretion that schools necessarily exercise over students, or the

school’s failure to do more to protect [its students.]” Id. at 171.

       Although we disagreed with its reasoning, see Morrow, 719 F.3d at 186–96

(Fuentes, J., dissenting, joined by Jordan, Vanaskie, and Nygaard, JJ., and Ambro, J., in

part), we are bound by the Morrow decision. See Morrow, 719 F.3d at 179 (Smith, J.,

concurring) (“‘Stare decisis should be more than a fine-sounding phrase.’ Yet it is

nothing more than that if it does not require us, in the ordinary course, to adhere to a

precedent with which we disagree.”) (quoting Oregon ex rel. State Land Bd. v. Corvallis

Sand & Gravel Co., 429 U.S. 363, 394 (1977) (Marshall, J., dissenting)). Accordingly,

the District Court properly found that the School District did not have a duty, under the

special relationship exception, to protect D.B. from other students’ harmful actions.

              b. The “State Created Danger” Exception is Not Applicable

       Next, Appellants contend that that the school is liable under the “state-created

danger” theory. In Morrow, this Court reiterated “that liability may attach where the state

acts to create or enhance a danger that deprives the plaintiff of his or her Fourteenth

Amendment right to substantive due process.” 719 F.3d at 177 (citing Kneipp, 95 F.3d at

1205). Although there are four elements in a state-created danger claim, only two are at

issue here: (1) whether the “state actor acted with a degree of culpability that shocks the

                                               8
conscience;” and (2) whether “a state actor affirmatively used his or her authority in a

way that created a danger to the citizen or that rendered the citizen more vulnerable to

danger than had the state not acted at all.” Id. (quoting Bright v. Westmoreland Cty., 443

F.3d 276, 281 (3d Cir. 2006) (citations and internal quotation marks omitted)).

       Here, the actions taken in response to the student-on-student bullying did not

shock the conscience, as D.B.’s principal went out of her way to investigate the situation

and make D.B. comfortable. In fact, Mrs. Bridges’ own testimony seemingly approved

of the school’s actions. See App. 0307 (Mrs. Bridges Dep.) (noting that the principal

“was very upset about the incident[;]” that “after the meeting, she apologized again[, and

s]he stormed off in the direction, . . . towards the cafeteria to talk to and try to investigate,

see what was going on[;]” and that Mrs. Bridges was “fine with” the class being changed

as a result of the investigation).

       Additionally, and as the District Court noted, Appellants’ student-on-student

bullying claims rest on the contention that it was the School District’s inaction that put

D.B. at an additional risk of harm. See Appellants’ Br. 26 (arguing the school “was

deliberately indifferent to the harassment and bullying[.]”). This argument was also

explicitly rejected by Morrow. 719 F.3d at 178 (“The dissent argues that Defendants’

failure to expel [a student] constitutes an affirmative ‘exercise of authority’ that

contributed to the danger the Morrows faced, thereby triggering a duty to protect. . . .

[W]ere we to accept the dissent’s formulation here, the state-created danger exception



                                               9
would swallow the rule.”) (footnote omitted). Accordingly, the District Court correctly

found Appellants failed to establish a claim under a state-created danger theory.

           2. Second Grade Teacher-on-Student Verbal Abuse and Bullying

       Appellants also argue that Mrs. Wilcha and the School District officials violated

D.B.’s rights in the second grade in light of Mrs. Wilcha’s verbal abuse and bullying.

When evaluating the actions of public school officials, this Court applies the “shocks the

conscience standard to federal claims[.]” Gottlieb ex rel. Calabria v. Laurel Highlands

Sch. Dist., 272 F.3d 168, 172 (3d Cir. 2001). Here, Appellants argue Mrs. Wilcha and

the School District violated D.B.’s rights under the shocks the conscience standard and

that the District should be liable for its failure to properly supervise and train its teachers

and principals. Appellants contend that the District Court erred by rejecting their due

process and failure to train arguments. To the contrary, the District Court rightly

concluded Appellants’ arguments are foreclosed by this Court’s precedent.

                       a. Appellants’ Due Process Argument Fails

       Substantive due process claims based upon “[n]on-physical types of harassment,

including verbal abuse,” are subject to the “shocks the conscience” analysis. See S.M. v.

Lakeland Sch. Dist., 148 F. Supp. 2d 542, 547 (M.D. Pa. 2001), aff’d, 33 F. App’x. 635

(3d Cir. 2002). Mindful of this stringent liability standard, Mrs. Wilcha’s conduct does

not rise to the level of a constitutional violation. Cf. Abeyta v. Chama Valley Indep. Sch.

Dist., 77 F.3d 1253 (10th Cir. 1996) (noting that a teacher calling a sixth grade student a

prostitute in front of her class for over a month-and-a-half did not rise to the level of a

                                              10
substantive due process claim); Doe v. Gooden, 214 F.3d 952 (8th Cir. 2000); Costello v.

Mitchell Public Sch. Dist., 266 F.3d 916 (8th Cir. 2001); Wyatt v. Fletcher, 718 F.3d 496

(5th Cir. 2013). Therefore, the District Court correctly found that Appellants cannot

recover under a due process theory.

                     b. Appellants’ Failure to Train Argument Fails

       To hold the School District liable for a failure to train under Section 1983,

Appellants must demonstrate that there was a constitutional violation and that the

violation was caused by the School District’s policy or custom. See Monell v. Dep't of

Soc. Servs., 436 U.S. 658, 690–91 (1978). Here, Appellants cannot recover from the

School District under Section 1983 for a failure to train because there was no underlying

constitutional violation. See Kneipp, 95 F.3d at 1212 n.26 (“Of course, had there not

been an underlying constitutional violation in the first instance, plaintiff’s ‘failure to

train’ claim against the City would not stand.”) (citing Canton, 489 U.S. at 388–89, and

Collins v. City of Harker Heights, 503 U.S. 115, 123–24, (1992)). Thus, the District

Court rightly found that Appellants could not recover under a failure to train theory. 4




       4
          “Appellants incorporate by reference those arguments made . . . concerning
‘failure to act’ (which Appellants argue is analogous to failure to train)[.]” Appellants’
Br. 38. However, as we already explained, Morrow explicitly rejected the idea that the
School District’s failure to act could support a Due Process claim. See Morrow, 719 F.3d
at 178. Consequently, if Appellants’ failure to act argument is “analogous” to their
failure to train argument, then the failure to train argument necessarily fails.
                                               11
                                     B. Title VI Claim

       Finally, Appellants contend that the School District created a racially hostile

environment in violation of Title VI. Title VI prohibits intentional discrimination based

on race in any program that receives federal funding. See 42 U.S.C. § 2000d; Alexander

v. Sandoval, 532 U.S. 275, 282–83 (2001). Pursuant to Title VI, Appellants may sue the

School District for money damages for a failure to address a racially hostile environment.

See Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 206 n.5 (3d Cir. 2001). Appellants

may recover for alleged “severe, pervasive, and objectively offensive” harassment if the

school “acts with deliberate indifference to known acts of harassment.” Davis v. Monroe

Cty. Bd. of Educ., 526 U.S. 629, 633 (1999). The School District can only be held liable

for a Title VI claim of racial discrimination when its response is “clearly unreasonable in

light of the known circumstances.” Id. at 648. Although Appellants argue that they have

successfully established a claim for hostile environment, their argument is unavailing.

       Appellants must raise at least an inference of discrimination to move forward with

their Title VI claim. See Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 276 n.45 (3d

Cir. 2014) (noting that the parties’ respective burdens in a Title VI disparate impact case

should follow those developed in Title VII cases); see also id. at 314 (McKee, C.J.,

concurring in part and dissenting in part) (clarifying “the appropriate standard for liability

under Title VI and § 1983” and making it clear that plaintiffs must show an adverse

action that gave “rise to an inference of discrimination.”). Appellants argue that they


                                             12
raised an inference of discrimination because D.B. was the only African-American in his

class and the District Court “demonstrated naiveté as to the more subtle, but no less

destructive, racism practiced in the purportedly ‘post-racial’ twenty-first century.”

Appellants’ Br. 2. 5 But while Appellants devote a portion of their brief to discussing “the

realities of American racism[,]” id. at 2–4, the fact remains that Appellants failed to show

Mrs. Wilcha did or said anything that could be reasonably construed as racially

motivated.

       This Court is well aware that racial discrimination need not be overt to create a

hostile environment. Cf. Blunt, 767 F.3d at 275 (“[W]e have recognized that individuals

who violate the law based on discriminatory motives sometimes do not leave a trail of

direct evidence, but instead ‘cover their tracks’ by providing alternate explanations for

their actions[.]”). Given the subtle forms that racism may take, “we have found that a

plaintiff may establish a prima facie factual foundation of discrimination by drawing

reasonable inferences from certain objective facts that are generally not in dispute.” Id.

(citations omitted).

       Here, the fact that Mrs. Wilcha called D.B. a “gabber” is not in dispute.

Appellants argue that this Court should “substitute the word ‘uppity’ for ‘gabber’”

because they assert this makes it “clear that D.B. was subject to racial discrimination


       5
         There was, as we previously noted, a biracial student in the class. That student
may well take exception to the claim that D.B. was the only African-American. A
biracial child may also identify as Black—just as that child may identify as White, Asian,
Latino, Native American, or multiracial.
                                           13
which harmed him physically, and deprived him of educational opportunities.”

Appellants’ Reply Br. 4–5. Specifically, Appellants argue that “gabber” is “but one

euphemism” for the word “uppity.” See id. at 4 n.6. If this were the case, then Mrs.

Wilcha repeatedly calling D.B. a “gabber” could arguably be perceived to have been

racially motivated. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d

Cir. 1996) (noting “the use of ‘code words’ can, under circumstances” show an intent to

discriminate). It is not the case, however, because here “gabber” is not akin to “uppity.”

       The word “gabber” in everyday parlance means “talkative”; there is no support in

the record for the assertion that the use of the term “gabber” was racially motivated—

even if one accepts the assertion that D.B. was the only African-American in his class. 6

Thus, because “gabber” means “talkative,” and no racially-charged code words were

used, we cannot draw an inference of racism from Mrs. Wilcha’s statements. Cf. Aman,

85 F.3d at 1083 (implying that facially neutral statements must “send a clear message and

carry the distinct tone of racial motivations and implications” to be “seen as conveying




       6
         Appellants cite nothing to support their proposition that the term “gabber” is akin
to the racially-charged term “uppity.” While “[t]here are no talismanic expressions
which must be invoked as a condition-precedent to the application of laws designed to
protect against discrimination[,]” we have made it clear that the use of code “words
themselves are only relevant for what they reveal—the intent of the speaker.” Aman, 85
F.3d at 1083. Focusing on the intent of the speaker here, the word “gabber” was not used
to indicate D.B. was “uppity.” Instead, D.B. himself indicated that “gabber” was used to
refer to “someone that is very talkative, always has something to say[.]” App. 0216 (D.B.
Dep.). Thus, by focusing on Mrs. Wilcha’s use of the term “gabber,” Appellants actually
raise the inference that Mrs. Wilcha punished D.B. for being talkative; not for his race.
                                             14
the message that members of a particular race are disfavored[.]”). Accordingly, the

District Court rightly granted summary judgment on this claim as well.

                                           IV.

      For the foregoing reasons, the District Court properly granted summary judgment

on all of Appellants’ claims. Therefore, we will affirm the judgment of District Court.




                                           15
