United States District Court, E.D. Pennsylvania
DAVID and RENEE HENRY, individually and as guardians and natural parents of S.J.K.H, a minor
SCHOOL DISTRICT OF PHILADELPHIA and DANIEL J. LAZAR, in his official and individual capacities
MEMORANDUM RE: MOTION TO DISMISS
case, Plaintiffs David Henry (“Mr. Henry”) and
Renee Henry (“Mrs. Henry”), both individually and
as guardians and parents of Plaintiff S.J.K.H., a minor,
allege that Defendants, Daniel J. Lazar
(“Lazar”), S.J.K.H.'s school principal, and
the School District of Philadelphia (“District”)
violated federal and state law by permitting S.J.K.H. to be
bullied and by discriminating against her on the basis of her
race, gender, and disabilities. The Complaint (ECF 1,
“Compl.”) advances ten Counts:
1. Count I: Sex-based hostile educational
environment in violation of Title IX of the Education
Amendments Act of 1972, 20 U.S.C. § 1681(a)
(“Title IX”), on behalf of S.J.K.H. against
2. Count II: Race-based hostile educational
environment in violation of Title VI of the Civil Rights Act
of 1964, 42 U.S.C. § 2000d et seq.
(“Title VI”), and 42 U.S.C. § 1981 on behalf
of S.J.K.H. against Defendant District;
3. Count III: Disability harassment in
violation of Section 504 of the Rehabilitation Act, 29 U.S.C.
§ 794 (“RA”), and the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq.
(“ADA”), on behalf of S.J.K.H. against Defendant
4. Count IV: Disability discrimination by
disparate treatment in violation of the RA and the ADA on
behalf of S.J.K.H. against Defendant District;
5. Count V: Race discrimination by disparate
treatment in violation of Title VI and § 1981 on behalf
of S.J.K.H. against Defendant District;
6. Count VI: Sex discrimination by disparate
treatment in violation of Title IX on behalf of S.J.K.H.
against Defendant District;
7. Count VII: State-created danger in
violation of the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution under 42 U.S.C.
§ 1983 on behalf of S.J.K.H. against both Defendants;
8. Count VIII: Violation of the Pennsylvania
Safe Schools Act, 24 P.S. § 13-1301, et seq.
(“PSSA”), and the Equal Protection Clause of the
Fourteenth Amendment under § 1983 on behalf of S.J.K.H.
against both Defendants;
9. Count IX: Willful misconduct in violation
of the Pennsylvania Political Subdivision Tort Claims Act, 42
Pa.C.S.A. § 8541, et seq.
(“PSTCA”), on behalf of S.J.K.H. against
Defendant Lazar; and
10. Count X: Negligent infliction of
emotional distress (“NIED”) on behalf of Mr.
Henry against Defendant Lazar.
before this Court is Defendants' Motion to Dismiss all
Counts of the Complaint for failure to exhaust administrative
remedies under Federal Rule of Civil Procedure 12(b)(1) and
for failure to state a claim upon which relief can be granted
under Rule 12(b)(6). For the reasons discussed below, the
Motion to Dismiss is GRANTED.
Plaintiffs' allegations as true, the factual background
is as follows. Mr. and Mrs. Henry, the parents and guardians
of S.J.K.H, reside in Philadelphia, Pennsylvania. (Compl.
¶ 3.) S.J.K.H. is an eleven-year-old, African American
female in the fifth-grade class at Albert M. Greenfield
School (“Greenfield”), a public school in
Philadelphia and a sub-unit of the District. (Id.
¶¶ 4, 8, 6a.) The District is a government agency
that provides public education for Philadelphia residents.
(Id. ¶ 5.) Lazar, a Caucasian man, is
Greenfield's principal. (Id. ¶ 6.) S.J.K.H.
has attended Greenfield since the 2017-18 school year, when
she was in fourth grade. (Id. ¶ 7.)
S.J.K.H.'s Medical Conditions and Individual Educational
has several disabilities, including neurofibromatosis Type 1
with moyamoya; optic glioma; Attention Deficit Hyperactivity
Disorder, inattentive; and carotid stenosis on the left side.
(Id. ¶ 10.) These disabilities restricted
S.J.K.H.'s participation in certain school activities,
including those requiring headbutting or chokeholds, such as
wrestling, which could cause loss of vision, stroke, or
death. (Id. ¶ 11.) Mr. and Mrs. Henry conveyed
these limitations “on several occasions” to
Greenfield in general; the school nurse; the physical
education teacher and S.J.K.H.'s IEP Coordinator, Cheryl
Russ (“Russ”); the Greenfield IEP Coordinator;
and Lazar. (Id. ¶¶ 12, 17, 31c.)
S.J.K.H.'s IEP provides for supplemental learning support
outside of the regular educational classroom as well as
speech and language therapy. (Id. ¶ 16.)
2017-18 Interactions with V.M.
the 2017-18 school year, S.J.K.H. suffered physical abuse and
bullying by her classmate, V.M., an African American female
with Caucasian adopted parents. (Id. ¶¶
20-21.) Mr. and Mrs. Henry allege that V.M.'s mother is a
Greenfield employee. (Id. ¶ 22.) V.M.
physically abused, bullied, and harassed S.J.K.H. “a
number of times” at school, including, but not limited
to, threatening to “slit [S.J.K.H.'s] throat”
on November 6, 2017 and January 3, 2018; taking S.J.K.H's
sweater and lunch; punching S.J.K.H. in the stomach on
January 3, 2018; destroying S.J.K.H.'s white board
eraser; leaving bruises on S.J.K.H.'s body; and causing
S.J.K.H. anxiety and a fear of school. (Id. ¶
23.) S.J.K.H. reported these events to Greenfield teachers
and/or administrators but was not taken seriously.
(Id. ¶ 24.) No. one at Greenfield contacted Mr.
or Mrs. Henry about these incidents. (Id. ¶
Mr. and Mrs. Henry learned of V.M.'s bullying and
harassment, they reported these issues to S.J.K.H.'s
teachers, Lazar, and “others” to no avail.
(Id. ¶ 26.) Prior to V.M.'s alleged attacks
on S.J.K.H., Lazar and other Greenfield administrators and
faculty, including V.M.'s parents, knew of V.M.'s
abusive behavior, but did “little” to stop
V.M.'s aggression toward S.J.K.H. (Id. ¶
2018-19 Interactions with N.S.
the 2018-19 school year, S.J.K.H. was bullied, harassed, and
physically abused by a Caucasian, male classmate, N.S.
(Id. ¶¶ 28-29.) N.S. had an IEP that
required him to have a one-to-one aide with him at all times
at school. (Id. ¶ 30.) On five separate
occasions in October 2018, N.S. physically attacked S.J.K.H.
at school. (Id. ¶ 31.)
on October 9, 2018, when N.S.'s aide was not present,
N.S. choked S.J.K.H. during homeroom. (Id. ¶
31a.) S.J.K.H. reported the incident to the homeroom teacher
but was ignored. (Id.) Neither the homeroom teacher
nor Russ, who was standing in the doorway, intervened or
reported the incident. (Id.)
on October 15, 2018, N.S. choked S.J.K.H. from behind during
math class. (Id. ¶ 31b.) Again, N.S.'s
one-to-one aide was not with him. (Id.) The math
teacher did not see what had happened, and S.J.K.H. did not
report the incident, but another student asked S.J.K.H. if
she was okay, and she said that she was not. (Id.)
After S.J.K.H. told Mr. and Mrs. Henry what had happened, Mr.
Henry took S.J.K.H. to school and N.S.'s one-to-one aide
apologized. (Id.) Mr. Henry reported both the
October 9 and October 15 attacks to Lazar, who was unaware of
what had happened but said that he would investigate.
(Id.) Three days later, on October 18, S.J.K.H. went
to the Children's Hospital of Philadelphia
(“CHOP”) because of persistent hip pain and
reported the attacks to her doctor. (Id.)
next day, while in music class on October 19, 2018, N.S.
stated that he took a train during the summer and killed the
black female train conductor, to which the music teacher
responded, “[W]e are not going to talk about killing
people.” (Id. ¶ 31c.) N.S. then pushed
S.J.K.H. down onto the carpet, pushed on her stomach, and
then sat on her stomach, but the music teacher did nothing to
help. (Id.) N.S.'s aide got N.S. off of S.J.K.H.
(Id.) At that time, the homeroom teacher happened to
walk by and directed S.J.K.H. to go to the school nurse, who
gave S.J.K.H. an icepack but did not call Mr. or Mrs. Henry.
(Id.) Instead, Russ called Mrs. Henry and told her
that S.J.K.H. and N.S. were “wrestling” in music
class, but she did not mention that S.J.K.H. went to the
nurse. (Id.) Russ stated, “You need to tell
your daughter to stay away from this boy. He has really bad
thoughts about her. And it goes well beyond liking
her.” (Id.) During the call, Mrs. Henry
learned that N.S. is autistic and that Lazar changed
N.S.'s homeroom effective immediately. (Id.)
followed up with Mr. and Mrs. Henry and assured them that he
would make sure that N.S. and S.J.K.H. would not “cross
paths.” (Id.) Specifically, on October 21,
2018, Lazar emailed Mr. and Mrs. Henry to inform them that
“[w]e believe that [N.S.] was playing out a fantasy in
his head that carried over into the real world, ” and
that Greenfield “quickly moved him” to another
on the morning of a fifth-grade field trip on October 22,
2018, Mr. Henry spoke to Lazar about S.J.K.H.'s physical
safety because of N.S., and three teachers assured Mr. Henry
that they would watch N.S. (Id. ¶ 31d.) When
the students returned to school, N.S. pushed S.J.K.H. down on
the schoolyard ground with his forearm firmly on her neck,
causing S.J.K.H. to bang her head hard on the ground.
(Id.) N.S.'s one-to-one aide was not present.
(Id.) A Greenfield teacher ran to pull N.S. off of
S.J.K.H., but Greenfield did not provide S.J.K.H. with
medical attention. (Id.) Neither Lazar nor anyone
else at Greenfield informed Mr. or Mrs. Henry or filed a
report. (Id.) The next day, Lazar assured Mr. Henry
that Greenfield scheduled N.S.'s arrival for fifteen
minutes after school started and his departure ...