Jane Doe, II v. Founding Fourteen, Inc

NOT FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________

No. 25-13894

Non-Argument Calendar ____________________

JANE DOE,

Individually and as next friend Jane Doe II, a Minor, et al., Plaintiffs,

JANE DOE, II,

Plaintiff-Appellant, versus

FULTON COUNTY SCHOOLS, et al., Defendants,

FOUNDING FOURTEEN, INC,

ANNETTE HIGGINS,

In Her Individual Capacity,

STAN J. BEINER,

In His Individual Capacity, Defendants-Appellees.

1

2 Opinion of the Court 25-13894 ____________________

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:23-cv-02666-SCJ ____________________

Before ABUDU, ANDERSON, and WILSON, Circuit Judges. W ILSON, Circuit Judge:

While a middle school student at Fulton Academy of Science and Technology (FAST), Plaintiff-Appellant Jane Doe II (Doe) was sexually harassed by her science teacher, Robert Vandel. Doe's par- ents brought claims on her behalf against Annette Higgins, the principal who hired Vandel; Stan Beiner, the principal who super- vised Vandel when he abused Doe; and FAST (collectively, De- fendants). Doe alleged that (1) FAST is liable under Title IX for act- ing with deliberate indifference to known risks of sexual harass- ment and abuse; and (2) Defendants violated her rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983. Following discovery, the district granted summary judgment for Defendants on all claims.

On appeal, Doe argues that (1) the district court erred in granting summary judgment on her Title IX claim when it con- cluded that the school administrators lacked actual notice of Van- del's sexual misconduct; (2) a reasonable jury could find that FAST was deliberately indifferent under Title IX for hiring and retaining Vandel despite its knowledge of his past and ongoing sexual mis-

2

25-13894 Opinion of the Court 3 conduct; and (3) the district court erred in granting summary judg- ment on Doe's § 1983 Equal Protection claim where evidence showed deliberate indifference by FAST's principals. After careful review, we reverse in part and affirm in part. We reverse the district court's grant of summary judgment on the Title IX claim for hiring and retaining Vandel because a reasonable jury could find FAST liable. We affirm the grant of summary judg- ment on the Title IX claim following Doe's report because a rea- sonable jury could not find FAST deliberately indifferent. And we affirm the district court's grant of summary judgment on the § 1983 claims because a reasonable jury could not find a violation of Doe's constitutional rights.

I. Factual Background¹

FAST is a charter school in Roswell, Georgia.²The final de- cision-making authority over teacher hiring, discipline, and termi- nation is vested in the principal of FAST. In June 2017, Vandel ap- plied for a teaching position at FAST while Higgins was principal. On his application, Vandel disclosed that his teaching certificate had been suspended for two years for "an ethics violation." He clar- ified in the application that "[a]ccusations were made against me in 2003. This led to me resigning and then again in 2006 to serve a

3

4 Opinion of the Court 25-13894 two-year suspension for the same [alleged violation]." When asked if he had "ever been the subject of a complaint or been disciplined by a court or a licensing board of any state," he selected "YES."

During the interview, Vandel explained to Higgins that multiple minor female students had made up "inappropriate" allegations against him. Vandel told Higgins that the young girls had gotten in trouble for skipping class, blamed him, and wrongly said that he had given them permission to be in his classroom. When he did not support their story, he claims that they made up accusations against him. He was eventually suspended for two years in re- sponse to the incident.

Following Vandel's disclosure, Higgins checked his Profes- sional Standards Commission (PSC) certificate. She ran a criminal history report, which did not show any previous criminal battery charges. She did not contact the PSC directly or reach out to the school where the allegations were lodged. She did not try to access the final decision of the PSC, which explained the allegations and suspension in further detail. Based on her interview with Vandel and her review of his teaching certificate, she "took the word of the state, that whatever happened back then was resolved and that he was a person worthy of teaching children by being certified." She found his story "valid" and "believed that he was falsely accused,"

in part because middle school students "are a mess at that age" and their "hormones are crazy." When asked whether Higgins hired Vandel after he told her he had been suspended because girls made up sexual allegations against him, she answered in the affirmative.

4

25-13894 Opinion of the Court 5 Higgins did not speak to anyone at FAST about Vandel's sus- pension before hiring him. In fact, no further action to uncover any information about Vandel's past was taken. After hiring Vandel in July 2017, Higgins did not implement any supervision over him and placed him in a portable classroom outside the main building. Hig- gins informed a few colleagues about Vandel's suspension after hir- ing him.³At the end of the 2017-18 school year, Higgins left FAST, the same year that Doe became a student.

Higgins was replaced as principal by Chris Mahoney, who remained in the position until he was removed in January 2019 for alleged abuse of male students. Mahoney did not receive any inap- propriate reports regarding Vandel during his time as principal, but he did know that Vandel was sometimes alone with students in his portable classroom.

Ashley Stinger took over as principal in January for the re- mainder of the spring 2019 term. During that semester, Stinger re- ceived a few reports involving Vandel. Fiona Bright, a teacher at FAST, was uncomfortable with Vandel's repeated use of pet names. Bright was later groped by Vandel in the copy room. A coworker reported the situation to Stinger, who called Bright into her office to recount what had happened. Stinger did not ask Bright

5

6 Opinion of the Court 25-13894 to make a written report of the incident, and Stinger never con- tacted Bright for further investigation. Stinger stated that she did not investigate the matter further because Bright told her she "had handled the matter herself."

Stinger received at least three different reports related to her niece, who was a student at FAST, and Vandel.⁴Reed Wenger, a teacher at FAST, received a report from Stinger's niece about Van- del rubbing her shoulders and neck. Stinger's niece told Wenger that she asked Vandel a few times to stop but he never did. Wenger reported the situation to Stinger, who allegedly replied, "If that ac- tually happened, my niece would have told me."

In March 2019, another teacher, Marjan Holbrook, wrote an email to Stinger and members of the School Board following her resignation as a sixth-grade teacher. The email mentioned that Vandel had "a documented case of the same thing he accused [Prin- cipal] Mahoney of with teenage girls," and Stinger did nothing when told her niece was "targeted" by Vandel. Stinger testified that the email was the first time she received any notice of the reports of her niece. Holbrook, on the other hand, testified that she spoke with Stinger about her concerns for Stinger's niece a few weeks be- fore she sent the email.⁵

6

25-13894 Opinion of the Court 7 At some other point during the semester, several students, including Stinger's niece, reported to the assistant principal Peter Epstein their discomfort with Vandel touching a female student to place her hair behind her ear. Epstein reported this to Stinger, which Stinger denies, and chose not to make a written report of the incident. After speaking with her niece, Stinger assigned a school counselor to investigate, who reported back that "none of the girls felt uncomfortable." Parents of the students were never contacted. Stinger then met with Vandel and Epstein. Stinger told Vandel that he made her niece uncomfortable and asked him if there was any- thing else she needed to know. Vandel responded no, and no fur- ther investigation or report was made. The incident was never re- ported to the Board because Stinger believed there was "no cause to believe abuse or neglect had occurred." No disciplinary action was ever taken against Vandel during Stinger's time as principal. Stan Beiner took over as principal in June 2019, at the end of the school year. During the transition meetings, Stinger informed him of the Holbrook email. She suggested that he move Vandel's classroom out of the trailer and back into the main building be- cause "there had been accusations about him having students in his classroom." She did not mention Vandel's previous suspension. Doe first interacted with Vandel as a sixth grader in 2018. In seventh grade, Vandel became her teacher and began to favor her. something off the niece's shoulder, Holbrook observed her jump back and say,

"I'm sorry, I thought you were Mr. Vandel, he's always messing with me like that."

7

8 Opinion of the Court 25-13894 Vandel would give her extra snacks, touch her shoulders, and pull her hair. In eighth grade, these interactions escalated when Vandel became Doe's homeroom and science teacher. He frequently touched her in front of other students and even "smacked her but- tocks with a yardstick" when she leaned over a desk. This attention led to serious bullying from other students.⁶

In the fall of 2019, two male students observed Vandel's

"weird" behavior towards Doe and reported the situation to Mary Beth Britten Greene, another FAST teacher. Greene kept Doe after class and asked her if there was "anything on her mind," to which Doe responded, that "nothing was going on." The same two stu- dents returned to Greene two days later with further concerns, and Greene pulled Doe aside and specifically asked her if "there was anything she wanted to tell me about Vandel." Doe again re- sponded that there was nothing. Still, Greene reported the situa- tion to Beiner.

In December 2019, Doe returned to Greene after class and indicated that she did indeed want to speak to her about Vandel. Doe told Greene that Vandel would "constantly touch her shoul- ders and back and linger his hands on her," would often stand close to her during class, and once cornered her in the back of the class- room after class, where she felt trapped, and told her "she had the most beautiful eyes and best ballerina build." Greene immediately met with Beiner and reported everything Doe had described.

8

25-13894 Opinion of the Court 9 Beiner scheduled a meeting with Doe where she relayed the same information to him, Epstein, and Greene. Later in the day, Doe told her parents about the meeting, and they immediately spoke with Beiner. Doe's parents informed Beiner that they planned to with- draw their daughter from FAST at the end of the semester. After school, Beiner and Epstein met with Vandel. He was told about the report, admonished for inappropriate touching, and placed on probation. He was advised that any additional reports of inappropriate behavior would lead to his dismissal. Beiner re- quested that Vandel not approach Doe about the report, which Vandel honored. After speaking with Doe's parents, Beiner sug- gested appointing a "trusted adult" to support Doe for the remain- der of her time at FAST. This would also provide her with a person to confide in about any future issues. Doe chose Greene, who sent reports to Beiner for the remainder of Doe's time at FAST. Doe withdrew from FAST later that month. In May 2022, Vandel pled guilty to the molestation of Doe and the rape of an- other female student at FAST.

II. Procedural History

In 2023, Doe and her parents sued Defendants asserting state law and federal law claims. Doe's claims included violations of Ti- tle IX, Section 1983 under the Fourteenth Amendment, and various Georgia state laws including assault, battery, and negligent hiring, supervision and retention. Defendants moved to dismiss. The dis- trict court granted the motion to dismiss in part, dismissing all state law claims and the Due Process claims asserted under § 1983. Two

9

10 Opinion of the Court 25-13894 federal claims remained: the Title IX claim against FAST and the Equal Protection claims against Defendants under § 1983. After discovery, Defendants moved for summary judgment. The district court granted summary judgment in Defendants' favor for all remaining claims. For the Title IX claim against FAST, the district court found FAST was not liable because it was never put on actual notice of Vandel's misconduct towards students. For the § 1983 claim against Higgins, the court held that Higgins did not disregard a known or obvious consequence of hiring Vandel. The court explained that the sexual battery charges against Vandel lacked merit because they were eventually dropped, and even if they were valid, proof of a single incident of unconstitutional activ- ity cannot alone establish deliberate indifference. For the § 1983 claims against Beiner, the court held that Doe failed to prove a causal connection between Beiner's actions and the constitutional violation by Vandel. Because there were no reports of Vandel abus- ing students, Beiner could not have been on notice of widespread abuse. And for the § 1983 claim against FAST, the district court found that if Higgins and Beiner are not liable under § 1983, neither is FAST. Additionally, Doe presented insufficient evidence to sug- gest that a custom of inaction towards sexual harassment exists. Doe timely appealed.

III. Standard of Review

"We review grants of summary judgment de novo." King v. King, 69 F.4th 738, 742 (11th Cir. 2023) (per curiam). "A motion for

10

25-13894 Opinion of the Court 11 summary judgment should be granted when 'the pleadings, depo- sitions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.'" Cohen v. United Am. Bank of Cent. Fla., 83 F.3d 1347, 1349 (11th Cir. 1996) (quoting Fed. R. Civ. P. 56(c)). "If a reasonable fact finder evaluating the evidence could draw more than one in- ference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant the summary judgment motion." Samples ex rel. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988).

IV. Title IX

Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). The Supreme Court has held that a teacher's sex- ual harassment of a student constitutes actionable discrimination under Title IX. Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 75- 76 (1992). Our analysis of a school's liability under Title IX is guided by the Supreme Court's decision in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998).

Gebser made clear that a school cannot be held liable on a theory of respondeat superior or constructive notice. Id.at 285. In- stead, liability attaches only when "an official of the school district who at a minimum has authority to institute corrective measures

11

12 Opinion of the Court 25-13894 on the district's behalf has actual notice of, and is deliberately indif- ferent to, the teacher's misconduct." Id. at 277. In Doe v. School Board of Broward County, we set out the test for determining liabil- ity. 604 F.3d 1248, 1254 (11th Cir. 2010). First, the plaintiff must be able to identify an "appropriate person" under Title IX, i.e., a school district official with the authority to take corrective measures in response to actual notice of sexual harassment. Id. Sec- ond, "the substance of that actual notice must be sufficient to alert the school official of the possibility of the Title IX plaintiff's harass- ment." Id. Last, an "official with such notice must exhibit deliberate indifference to the harassment." Id.

Doe argues that the school is liable for two different viola- tions of Title IX.⁷First, the hiring and retaining of Vandel as a teacher despite his previous suspension, and second, ignoring warnings about Vandel's inappropriate behavior with staff and stu- dents that eventually resulted in Doe's sexual harassment. The dis- trict court held that neither Higgins nor Beiner "knew Vandel was abusing students" and thus were never given actual notice of sexual harassment. Doe II v. Founding Fourteen, Inc., No. 1:23-CV-02666- SCJ, 2025 WL 3286661, at *4 (N.D. Ga. Sept. 30, 2025).

12

25-13894 Opinion of the Court 13 We address the alleged violations in three parts. First, the hiring of Vandel under Higgins; second, the employment of Vandel under Stinger; and third, the harassment of Doe under Beiner.

A. Hiring of Vandel under Hiins

Actual Notice We are first asked to determine whether the knowledge of Vandel's past allegations and suspension is sufficient to establish that FAST, via Higgins, had actual notice under Title IX.⁸There are two main ways to show that a school official was on actual notice. First, a plaintiff can show that an appropriate person knew they were being sexually harassed. See DeMarcus v. Univ. of S. Ala., 133 F.4th 1305, 1314 (11th Cir. 2025). Second, a plaintiff can show that an appropriate person knew that the teacher had harassed other students in a way that sufficiently alerted the official to the risk of further sexual harassment of students. Id. When Higgins hired Van- del, Doe had not yet been sexually assaulted. Thus, she must show that Higgins was sufficiently alerted to harassment of other stu- dents by Vandel that posed a risk to her.

13

14 Opinion of the Court 25-13894 The Supreme Court has held that some prior allegations of harassment, such as sexually suggestive comments, are insufficient to alert a school official of the risk of a Title IX plaintiff's sexual harassment. Gebser, 534 U.S. at 291. We have also held that com- plaints of "incidental touching" during a touch football game or

"perceived imminent touching" between a teacher and a student at a water fountain is insufficient to put an official on actual notice. Davis v. DeKalb Cnty. Sch. Dist., 233 F.3d 1367, 1373 (11th Cir. 2000) (per curiam). But actual notice does not require that the prior har- assment happen to the plaintiff herself. Broward Cnty., 604 F.3d at 1258. And lesser harassment can still provide actual notice of "sex- ually violent conduct" that the school official "has the duty to de- ter." Id. at 1258. The Supreme Court in Gebser rejected the argu- ment that schools could be held liable under a theory of construc- tive notice, in other words, held liable for what they should have known. 524 U.S. at 275.

In Williams v. Board of Regents of University System of Georgia, we addressed the issues of actual notice in the college setting. 477 F.3d 1282, 1294 (11th Cir. 2007). In Williams, the plaintiff was vio- lently assaulted and raped by a University of Georgia (UGA) bas- ketball player. Id. The plaintiff did not allege that UGA had notice of the player's history of raping female students. However, we still held that her complaint could withstand a motion to dismiss in part because she alleged that UGA recruited and admitted the basketball player with knowledge of a history of sexual assault at other

14

25-13894 Opinion of the Court 15 schools. Id. The player was dismissed from a prior community col- lege after allegations that he sexually assaulted two female employ- ees of the athletic department. Id. at 1290.

Our case differs in a few respects. First, Williams was deter- mined at the motion to dismiss stage, and the court found that the facts within the complaint, taken as true, plausibly stated a claim of actual notice for student-on-student harassment. Additionally, the basketball player "pleaded no contest to criminal charges of misde- meanor trespass in connection with the two sexual assaults." Id. Here, we are asked if a reasonable jury could find that Higgins was put on actual notice when she was informed of Vandel's past alle- gations and suspension. We find that a reasonable jury could. At the time of hiring, Higgins had sufficient information to put her on notice of a risk of future sexual harassment. Vandel re- signed from teaching over an incident in 2003, and in 2006, his teaching license was suspended for two years. Although Vandel told Higgins that the allegations were false, Higgins was aware that minor female students accused Vandel of sexual harassment,⁹and

15

16 Opinion of the Court 25-13894 that the PSC found reason enough to suspend his teaching license because of its findings.¹⁰Higgins' belief that the allegations were false is not enough to defeat the actual notice she was given of a risk of future sexual harassment. See Broward Cnty., 604 F.3d at 1259 ("The simple fact that these prior incidents were unconfirmed and did not escalate to a violent sexual assault akin to Doe's cannot as a matter of law absolve the School Board of Title IX liability."); see also Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 268 (4th Cir. 2021) (holding that a school can be held liable for actual notice, regardless of if a school official subjectively believed the alleged sexual assault occurred).

The facts of this case occupy a middle ground between our prior precedents. Higgins' knowledge of Vandel's suspension was less substantial than the notice in Williams, where the school offi- cials knew of criminal charges from multiple events, 477 F.3d at 1294, and less substantial than Broward County, where the school officials received two separate complaints of sexual harassment from students, 604 F.3d at 1259. But Higgins' knowledge was more

16

25-13894 Opinion of the Court 17 substantial than cases where we found that there was no actual no- tice. See DeKalb Cnty., 233 F.3d at 1372-73 (finding reports of inci- dental touching at a football game and imminent touching at a wa- ter fountain insufficient to provide notice); DeMarcus, 133 F.4th at 1315 (finding generalized allegations of non-sexual misconduct or abuse insufficient to provide notice); see also Gebser, 524 U.S. at 291- 92 (finding sexual comments made to a group of students insuffi- cient to provide notice).

The record shows that Higgins knew that the allegations were sexual in nature, originated from multiple female students, and that a serious punishment was instated against Vandel in re- sponse. These facts are significant enough to establish that Higgins knew Vandel was a potential risk to future students. Thus, we con- clude that a reasonable jury could find that she was on actual notice under Title IX.

Deliberate Indifference

We are next asked to determine whether Higgins' actions in response to the actual notice of Vandel's past behavior were suffi- cient to establish that she acted with deliberate indifference under Title IX.¹¹"Deliberate indifference is an exacting standard."

17

18 Opinion of the Court 25-13894 Broward Cnty., 604 F.3d at 1259. School district officials will only be found deliberately indifferent when their "response to the harass- ment or lack thereof is clearly unreasonable in light of the known circumstances." Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648 (1999). We are not asked to speculate whether a "perfect investigation and more vigorous response"

could have prevented Doe's assault. Broward Cnty., 604 F.3d at 1259. Instead, we only face the question of whether a jury, as a mat- ter of law, could not find that Higgins' response was clearly unrea- sonable under the known circumstances. Id.

We have held that even where there is "some action" by the school official, the plaintiff can still establish facts sufficient to show deliberate indifference. Id. at 1260. In Williams, we held that UGA could be found liable under Title IX for deliberate indifference when it placed the basketball player with previous allegations of sexual assault in a student dormitory and failed to "supervise him in any way or to inform him of their expectations of him under the applicable sexual harassment policy." 477 F.3d at 1296. In Broward County, we held that the failure to conduct any investigation, for- mal or informal, following a complaint could constitute deliberate 648 (1999). In Gebser and Davis, there was no allegation that school officials knew of previous offenses before hiring the teacher or admitting the student.

524 U.S. at 291-92; 526 U.S. at 648. We have not previously addressed the question of whether a school can be held liable for deliberate indifference for actions taken after hiring a teacher with past sexual allegations. The closest analogous case is the athletic recruitment in Williams, which was resolved at the motion-to-dismiss stage. 477 F.3d at 1303.

18

25-13894 Opinion of the Court 19 indifference. 604 F.3d at 1262. Contrast this with Sauls v. Pierce County School District, where we determined that investigations, in- terviews, warnings, and restrictions for the teacher established that the school district had not been deliberately indifferent. 399 F.3d 1279, 1286 (11th Cir. 2005).

In light of our precedent, we conclude that Doe has raised a material issue of fact as to whether Higgins was deliberately indif- ferent. A rational factfinder could infer from Higgins' limited action that her response was clearly unreasonable considering Vandel's past. Other than checking Vandel's teaching certificate and crimi- nal background, Higgins made no effort to investigate the previous allegations against him. She never contacted the school where the incident occurred. She never reached out to the PSC to find out more about the suspension. She did not attempt to access the final decision issued by the PSC.¹²She did not inform any Board mem- bers of Vandel's past before hiring him. Contra Sauls, 399 F.3d at 1286 (finding no deliberate indifference where the school official

19

20 Opinion of the Court 25-13894 conducted an immediate investigation and contacted his superior with the results).

And despite her knowledge of the past sexual allegations from minor students, Higgins allowed Vandel to teach in a portable classroom outside the main building. She failed to institute any sort of supervision over his teaching or behavior in her remaining time at FAST. See Broward Cnty., 604 F.3d at 1262 (finding the school's failure to institute any corrective measures aimed at "fettering out"

the possibility of future sexual harassment enough to constitute de- liberate indifference); Williams, 477 F.3d at 1305 (Jordan, J., concur- ring) ("I see no reason why a funding recipient should avoid Title IX liability if, with prior knowledge of a prospective student's or teacher's documented prior acts of serious sexual misconduct, it admits the student or hires the teacher and then fails to conduct any monitoring or counseling, thereby placing other students in se- rious danger."). Higgins was on notice that Vandel had previously been accused of sexual misconduct by minor female students. We cannot know whether further investigation or supervision would have protected Doe from the eventual assault. But we agree that there "need not be any requirement that the victim be subjected to a second act of discrimination or harassment before there can be Title IX liability." Williams, 477 F.3d at 1305 (Jordan, J., concurring). Given the known circumstances available to Higgins, we conclude that a reasonable jury could find her failure to undertake any sort of further investigation into Vandel or implement supervision over his employment sufficient to constitute deliberate indifference.

20

25-13894 Opinion of the Court 21

B. Employment of Vandel under Stinger Actual Notice

We are next asked to determine whether the reports of Van- del's behavior during his employment are sufficient to establish that FAST, via Stinger, had actual notice under Title IX. Doe argues that Stinger received multiple reports of Vandel's harassment of teach- ers and female students and knew Vandel spent time alone with female students in his classroom. Defendants argue that Stinger only knew of a single report about her niece and a single report of the harassment of a fellow teacher, both of which were insufficient to put Stinger on notice that Vandel posed a risk to other students. The district court agreed, citing Hackett v. Fulton County School Dis- trict for the proposition that a "teacher's harassment of another teacher can not be considered sufficient to put the principal on no- tice that the teacher may be committing sexual misconduct against students." 238 F. Supp. 2d 1330, 1349 (N.D. Ga. 2002). We look to our decision in Broward County to guide our anal- ysis. In Broward County, the principal received complaints from two different students of sexual comments and inappropriate touching from the same teacher. 604 F.3d at 1250-53. We held that "viewed collectively" the complaints put the principal on notice of a pattern of sexual harassment and related allegations. Id. at 1259. We noted that "[e]ven if prior complaints by other students are not clearly credible, at some point a supervisory school official knows that a school employee is a substantial risk to sexually abuse children." Id. (citation modified). We contrasted the complaints in Broward

21

22 Opinion of the Court 25-13894 County from those found in Gebser and DeKalb County. Unlike Gebser, where the allegations were only comments made to a group of students during class time, the complaints in Broward County had physical components directed at individual students. Id. at 1258. And unlike DeKalb County, where the allegations of physical touch

"occur[ed] in a context in which touching a student may have been appropriate or accidental, such as an athletic event" the incidents in Broward County occurred in the teacher's classroom, between classes, and were similar to the eventual assault of the plaintiff. Id. We find the reports of Vandel's behavior, viewed collectively, are substantial enough that a reasonable jury could find that Stinger was on notice. Like Broward County, the allegations involved both sexual comments and physical touching. Id. The alleged touching occurred in circumstances that were clearly not appropriate or ac- cidental.¹³Unlike DeMarcus, the reports were not generalized alle- gations of misconduct, but specific instances of inappropriate com- ments and touching. 133 F.4th at 1314. Importantly, Stinger re- ceived at least one report of Vandel's harassment of another teacher and at least three reports of Vandel's harassment of her

22

25-13894 Opinion of the Court 23 niece. These reports reached Stinger when she already had knowledge, at least in part, of Vandel's past allegations and suspen- sion. We conclude that together these allegations are sufficient to satisfy Doe's burden of raising a material issue of fact on the issue of actual notice.

Deliberate Indifference

We are next asked to determine whether Stinger's actions in response to the actual notice of Vandel's behavior were sufficient to establish that she acted with deliberate indifference under Title

IX. Viewing the facts in the light most favorable to Doe, we con- clude that she has raised a material issue of fact as to whether FAST, via Stinger, was clearly unreasonable in light of the known circum- stances.

Like the principal in Broward County, it appears that Stinger took some action in response to the reports of Vandel's behavior. See 604 F.3d at 1260; cf. Davis, 526 U.S. at 654 (finding deliberate indifference where the school district made "no effort whatsoever either to investigate or to put an end to the harassment"). How- ever, the effort made by Stinger was woefully deficient in light of the known circumstances. Despite meeting with Bright to discuss the teacher-on-teacher harassment, no formal written report or in- vestigation followed, and no follow-up conversation with Vandel occurred. Across the three separate reports of Vandel's harassment of her niece, the most Stinger did in response was assign a counse- lor to talk with the students and inform Vandel that he made her niece uncomfortable. Shockingly, no written report was made, no

23

24 Opinion of the Court 25-13894 parents were informed of the situation, no school board members were involved, and Vandel was never disciplined. Vandel remained unsupervised in his portable classroom, where he spent time alone with female students. This closely resembles the deficient actions of the principal in Broward County. After the second student report, the principal did nothing other than obtain a written statement from the student and teacher. No formal or informal investigation followed, and the report to the investigation unit did not even in- clude the teacher's name. Broward Cnty., 604 F.3d at 1261. As we explained, the "known circumstances from which we evaluate the reasonableness" of a response change significantly as a principal receives further reports of inappropriate behavior. Id. at 1261 (internal quotation marks omitted). Here, although the time- line of the reports is unclear, there appears to be no change in Stinger's response as further allegations of Vandel's behavior arose. This is concerning, because when "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 elimi- nate the behavior." Id. (quotation marks omitted). Importantly, Stinger had knowledge of Vandel's previous allegations and sus- pension. Yet, as the complaints accumulated, Stinger failed to insti- tute any corrective measures to protect students from further har- assment. Most incredibly, it appears that she did not inform her re- placement, Beiner, of the full breadth of the allegations against Vandel or the previous suspension, and merely suggested that Van- del's classroom be returned to the main building.

24

25-13894 Opinion of the Court 25 We conclude that a reasonable jury could find that her ac- tions, or lack thereof, constitute deliberate indifference.

C. Harassment of Doe under Beiner

Next, Doe argues that FAST, via Beiner, was deliberately in- different to reports of Vandel's sexual misconduct during his em- ployment. As a reminder, the district court found that Beiner was not on notice that Vandel was abusing students. Even assuming, arguendo, that FAST was on actual notice after Doe reported her interactions with Vandel,¹⁴we conclude that Doe has not estab- lished sufficient facts to show that FAST was deliberately indiffer- ent under Title IX.

We are guided in our analysis by our decision in Davis v. DeK- alb County School District, in which we held that a school official did not act with deliberate indifference after receiving a student's com- plaint about a teacher's inappropriate touching. 233 F.3d at 1373.

25

26 Opinion of the Court 25-13894 The principal took immediate corrective action by launching an in- vestigation and interviewing the parties involved, even though the incident was not clearly sexual in nature. Id. The facts of the present case are comparable. After receiving the report from Greene regarding Doe and Vandel, Beiner took im- mediate corrective action by setting up a meeting with Epstein, Greene, and Doe, even though at that point, it was unclear to Beiner that Doe was complaining of sexual assault. He offered to remove Doe from Vandel's class and spoke with Doe's parents. He and Epstein then met with Vandel, reprimanded him for his behav- ior, and placed him on probation. Doe was assigned a trusted adult to watch over her and remain open for her to report to for the re- mainder of her time at FAST. Even drawing all reasonable infer- ences in favor of Doe, we find that Doe has failed to create a genu- ine issue of material fact that Beiner acted with deliberate indiffer- ence. Thus, we affirm. See Mata Chorwadi, Inc. v. City of Boynton Beach, 66 F.4th 1259, 1263 (11th Cir. 2023) (allowing this court to affirm the judgment on any ground supported by the record).

V. § 1983

Next, Doe argues that the district court erred when it granted summary judgment to Defendants on her § 1983 claims. Doe alleges that the principals, who possessed final policymaking authority over hiring, discipline, and termination decisions, know- ingly retained Vandel despite reports of misconduct, and those de- cisions constitute municipal policy attributable to FAST. Higgins and Beiner argue that the hiring and supervision of Vandel were

26

25-13894 Opinion of the Court 27 discretionary acts within their authority as principal, which entitle them to qualified immunity. They further argue that because Doe cannot show that there was a constitutional violation of her rights, she cannot overcome the qualified immunity.

We must first determine whether Higgins and Beiner are protected by qualified immunity for their discretionary acts as prin- cipals. "Qualified immunity offers complete protection for govern- ment officials sued in their individual capacities if their conduct 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Vinyard

v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, (1982)). The defense of qualified im- munity is a two-step process. First, individual defendants must show that the conduct was within their discretionary functions. Christmas v. Harris Cnty., 51 F.4th 1348, 1354 (11th Cir. 2022). Then, a "plaintiff may rebut this entitlement by showing that the govern- ment officials (1) committed a constitutional violation; and (2) that this violation was clearly established in law at the time of the al- leged misconduct." Edger v. McCabe, 84 F.4th 1230, 1235 (11th Cir. 2023). "The test is conjunctive, and if a plaintiff fails either prong of the qualified immunity analysis, [her] claim is barred." Id. We find that both Higgins and Beiner are protected by qual- ified immunity.¹⁵As we explain in the following sections, Doe has

27

28 Opinion of the Court 25-13894 failed to establish the first prong—that either principal violated her constitutional right.

a. Principal Higgins' Liability

First, we consider whether Higgins can be held liable under § 1983 for deliberate indifference in hiring Vandel by failing to in- vestigate his background. For a § 1983 claim based on a hiring de- cision and inadequate screening, the Supreme Court has advised that:

Only where adequate scrutiny of an applicant's back- ground would lead a reasonable policymaker to con- clude that the plainly obvious consequence of the de- cision to hire the applicant would be the deprivation of a third party's federally protected right can the of- ficial's failure to adequately scrutinize the applicant's background constitute deliberate indifference.

Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 411 (1997) (internal quotation marks omitted). It is not enough to show that the decisionmaker was indifferent to the applicant's background; the plaintiff must show that the municipal actor "disregarded a known or obvious consequence of hiring the applicant." Griffin v. action, we must dismiss the [Plaintiff's] claim without reaching the qualified immunity issue."). The question of whether a Georgia Charter School em- ployee is a state actor is an issue of first impression in our circuit. Because Doe has failed to provide sufficient evidence showing that either principal violated her constitutional rights, this case is not the proper vehicle for determining the threshold issue of whether charter school principals are state actors.

28

25-13894 Opinion of the Court 29 City of Opa-Locka, 261 F.3d 1295, 1313 (11th Cir. 2001). We are in- structed to "carefully test the link between the policymaker's inad- equate decision and the particular injury alleged." Bryan Cnty., 520 U.S. at 410.¹⁶

Here, we are asked if there is a strong causal connection be- tween Vandel's background and the eventual constitutional viola- tion suffered by Doe. Doe argues that Higgins' failure to conduct a cursory review of past allegations—which would have revealed Vandel's concealment of the extent of his misconduct—was delib- erate indifference to the risk that Vandel would repeat that con- duct. In return, Defendants argue that the causal connection is too weak to support § 1983 liability. Higgins completed the back- ground check and obtained confirmation from the PSC that Vandel had a current teaching certificate. Furthermore, Higgins knew that the PSC reinstated Vandel following the incident, which indicated that he was fit to teach for the nine years that followed. The PSC

29

30 Opinion of the Court 25-13894 already conducted the investigation that Doe suggests would have uncovered the known and obvious risk of a future sexual harass- ment and still cleared Vandel for teaching. Thus, Defendants argue that Higgins was not deliberately indifferent.¹⁷ The question before us is whether an adequate screening of Vandel would have led a reasonable policymaker to conclude that it was a plain and obvious risk to hire him. Doe has not alleged facts sufficient to meet this very high burden. Had Higgins investigated Vandel further, she could have accessed the PSC investigation re- port and likely spoken to members of his previous school about why he was suspended. But even if Higgins had accessed the prior investigation and spoke with Vandel's previous school, it would not have been clear that a plain and obvious risk of hiring him was the

30

25-13894 Opinion of the Court 31 eventual sexual harassment of Doe. First, the allegations and sus- pension occurred almost ten years prior to his hiring at FAST. Sec- ond, the PSC determined that he was worthy of being reinstated as a teacher after his suspension. And, to the best of Higgins' knowledge, Vandel worked without incident for an additional nine years after suspension—a finding that Doe does not rebut. See Wil- liams v. DeKalb Cnty., 327 F. App'x 156, 162 (11th Cir. 2009) (per cu- riam) (deciding not to hold a city liable for hiring an enforcement officer with a background of violence when the incident occurred seven years prior and he was later evaluated favorably by a county psychologist).

In Griffin, the plaintiff sued the City of Opa-Locka under § 1983 for deliberate indifference of its hiring of a former city man- ager. 261 F.3d at 1298. We held that the plaintiff had successfully demonstrated that the City had been deliberately indifferent in its hiring decision. Id. at 1313. The manager was hired without a re- sume, interview, background check, or discussion of qualifications. Id. The City received faxes and mail warnings of the manager's past sexual harassments complaints. Id. at 1314. And a "cursory check"

into the manager's prior employment history would have alerted the City of previous sexual harassment complaints. Id. In fact, the failure to conduct a background search was against the City's own policy. Id. We upheld the jury verdict that "that the City ignored a known or obvious risk that [the manager] was highly likely to en- gage in sexual harassment if hired." Id.

31

32 Opinion of the Court 25-13894 The evidence in this case stands in stark contrast to Griffin, where the City conducted a negligible amount of background screening and disregarded overwhelming evidence that the appli- cant was an ongoing sexual harassment threat. 261 F.3d at 1298. Here, there was no comparable conscious disregard of a high risk that Vandel would sexually assault future students. Because of the intervening factors of time and recertification, we conclude that the connection between Vandel's background and the eventual constitutional deprivation is not strong enough to hold Higgins li- able under the rigorous standard of § 1983. Thus, Higgins is shielded by qualified immunity, and we affirm the district court's grant of summary judgment. See Mata Chorwadi, 66 F.4th at 1263.

b. Principal Beiner's Liability

Next, we consider whether Beiner can be held liable under § 1983 for Vandel's sexual assault of Doe during his time as princi- pal. Because Beiner did not personally participate in the assault of Doe, liability can be imposed only by establishing Beiner's liability in a supervisory capacity. Broward Cnty., 604 F.3d at 1266. Supervi- sory officials are liable only when "there is a causal connection be- tween actions of the supervising official and the alleged constitu- tional deprivation." Id. (quotation marks omitted). This causal con- nection can be established either "(1) when a history of widespread abuse puts the responsible supervisor on notice of the need to cor- rect the alleged deprivation, and he fails to do so or (2) when a su- pervisor's improper custom or policy results in deliberate indiffer- ence to constitutional rights." Id. (internal quotations omitted).

32

25-13894 Opinion of the Court 33 The district court found that Doe failed to show the causal connection between Beiner's actions and Doe's eventual assault. We agree. The standard for supervisory liability is "extremely rig- orous." Braddy v. Fla. Dep't of Lab. & Emp. Sec., 133 F.3d 797, 802 (11th Cir. 1998). "A few isolated instances of harassment [would] not suffice" to put Beiner on notice of widespread abuse. Id. There is no evidence that Beiner received the prior reports of Vandel's harassment of students from Stinger's tenure to sufficiently estab- lish a history of widespread abuse. Doe's report alone is insufficient to establish liability. See Broward Cnty., 604 F.3d at 1266-67 (finding two reports of similar sexual harassment insufficient). And as we have explained in our analysis of Doe's Title IX claim, there is no evidence that Beiner was deliberately indifferent to Doe's constitu- tional rights. Thus, she cannot show that Beiner had a custom or policy that was deliberately indifferent. Accordingly, we conclude that Beiner is shielded by qualified immunity and affirm the district court's grant of summary judgment. See Mata Chorwadi, 66 F.4th at

1263.

c. FAST's Liability

Doe further argues that FAST should be held liable for her injuries under § 1983. A municipality cannot be held liable for con- stitutional deprivations on the theory of respondeat superior. Denno v. Sch. Bd. of Volusia Cnty., 218 F.3d 1267, 1276 (11th Cir. 2000). However, a municipality can be held liable for constitutional torts that "result from an official government policy, the actions of an official fairly deemed to represent government policy, or a cus- tom or practice so pervasive and well-settled that it assumes the

33

34 Opinion of the Court 25-13894 force of law." Id. (citing Monell v. Dep't of Soc. Servs. of City of N.Y.,

436 U.S. 658, 694 (1978)). "Under certain circumstances, municipal liability may also be based on a single decision by a municipal offi- cial with final policymaking authority." Davis v. City of Apopka, 78 F.4th 1326, 1352 n.7 (11th Cir. 2023) (citing Pembaur v. City of Cin- cinnati, 475 U.S. 469, 483 (1986)).

The district court found that FAST cannot be held liable un- der § 1983. We agree. Even assuming, arguendo, that Higgins' and Beiner's actions represent government policy, we have explained in the previous sections that those actions did not violate Doe's constitutional rights.¹⁸Likewise, Doe has not identified an "official government policy" or a "custom or practice so pervasive and well- settled that it assumes the force of law" that could serve as the basis for FAST's § 1983 liability. Thus, we affirm the district court's grant of summary judgment.

VI. Conclusion

We affirm in part and reverse in part the judgment of the district court.

AFFIRMED IN PART AND REVERSED IN PART.

34