United States District Court, W.D. Kentucky, Louisville Division
KESHIA CLEMONS, as Mother and Next Friend of T.W. PLAINTIFF
SHELBY COUNTY BOARD OF EDUCATION; SCOTT RICKE; JOHN LEEPER; and JAMES NEIHOF, Superintendent DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. Stivers, United States District Judge.
matter is before the Court on Plaintiff's Motion for
Partial Summary Judgment (DN 34), and Defendants' Motion
for Summary Judgment (DN 35). The motions are ripe for
adjudication. For the reasons outlined below, Defendants'
motion is GRANTED, and Plaintiff's
motion is DENIED.
STATEMENT OF FACTS AND CLAIMS
Keshia Clemons (“Clemons”) is the mother of T.W.,
a minor who was an eighth grader and a ninth grader at Martha
Layne Collins High School (“MLCHS”) during the
2013-14 and 2014-15 academic years, respectively. Defendant
Shelby County Board of Education (“SCBE”) is the
governing body overseeing Shelby County Public Schools, which
includes MLCHS. Defendant Scott Ricke (“Ricke”)
was the MLCHS girls' tennis coach for the 2014 and 2015
seasons. Defendant Dr. James Neihof (“Neihof”) is
the Superintendent of SCBE, and for the relevant time period,
Defendant John Leeper (“Leeper”) was the
Principal at MLCHS.
beginning of the 2013-14 school year, T.W.'s parents
noticed that she was experiencing a significant amount of
anxiety, which her mother partially attributed to T.W. being
overwhelmed by the size and environment of her new school,
MLCHS. (Clemons Dep. 55:3-11). In December 2013,
T.W.'s parents decided to seek professional assistance
from Seven Counties Services, Inc.-Shelby County (n/k/a
Cornerstone Kentucky) (“Seven Counties”).
(Clemons Dep. 53:5-11, 56:19-57:3). On February 10, 2014, a
Seven Counties therapist diagnosed T.W. with Asperger's
Syndrome Disorder. (Clemons Dep. 70:13-18; Defs.' Mot.
Summ. J. Ex. E, at 1-2, DN 35-6). During that school year,
Clemons did not formally request an individualized education
plan or any accommodation for T.W. (Clemons Dep. 72:1-3,
had participated on the girls' tennis team during her
sixth and seventh grade years, and she decided to participate
on the 2014 girls' tennis team. (T.W. Dep. 24:22-25:1,
Dec. 29, 2016, DN 41-1; Clemons Dep. 43:8-18, 46:13-16,
62:20-63:3; Ricke Dep. 8:5-10, Aug. 25, 2016, DN 41-2). While
the parties dispute whether there were tryouts that season
and the number of team members, the parties agree that at
least fourteen girls were on the 2014 girls' tennis team.
(Clemons Dep. 65:9-12; Ricke Dep. 49:22-50:9). As Ricke
recalled, T.W. was probably the fourth best singles players
on the team at the beginning of that season. (Ricke Dep.
first two months, the team held conditioning and training
sessions, and the conditioning included yoga, jumping around,
stretching, and running. (Clemons Dep. 63:18-19; T.W. Dep.
30:21-25). During this time while Clemons was seeking a
diagnosis from the therapist, T.W. “would come home
crying, ” which she attributed to criticism from what
appeared to be singling out by Ricke. (T.W. Dep. 30:25-31:16;
Clemons Dep. 70:25-14). Ricke recalled T.W. exhibiting
“[m]eltdowns that would happen very quickly if she
didn't get her way, running away from the situation. If
she was uncomfortable with it she would just like run off the
court . . . .” (Ricke Dep. 13:25-14:4). Ricke also
noted that T.W. had difficulty dealing with any comment that
appeared to be critical of her, and Clemons criticized Ricke
for failing to give T.W. positive encouragement and ignoring
her during practices and matches. (Ricke Dep. 67:22-25;
Clemons Dep. 95:15-18, 96:17-24, 98:13-21, 102:19-25).
a bad practice on February 17, 2014, Clemons texted Ricke and
disclosed T.W.'s diagnosis of Asperger's Syndrome
Disorder. (Clemons Dep. 62:17-19, 74:9-22). Ricke and Clemons
then discussed the matter over the telephone and during that
conversation Ricke disclosed that he has a son with autism
who exhibited similar mannerisms. (Clemons Dep. 74:23-75:3;
Ricke Dep. 13:7-15).
March 21, 2014, and March 27, 2014, T.W. played her first
exhibition match and her first varsity match, respectively.
(Defs.' Mot. Summ. J. Ex. H, at 7, DN 35-9). The
following month, T.W. continued to participate in singles and
doubles matches. (Defs.' Mot. Summ. J. Ex. H, at 9-10).
end of April, Clemons texted Ricke to find out if T.W. would
be participating in the regional tournament, but she did not
receive a response. (Defs.' Mot. Summ. J. Ex. H, at 12).
Two days later, Clemons sent the same text to Ricke, who
replied that T.W. had been beaten out by another
player-R.S.-for the last spot at regionals based on a
challenge match held about a week before regionals.
(Defs.' Mot. Summ. J. Ex. H, at 13; Ricke Dep. 15:5-21,
16:15-16, 17:14-18). Clemons was upset because Ricke had told
T.W. previously that she would be participating in the
regional tournament, and Clemons was critical of Ricke's
failure to tell her that this challenge match was being used
to determine who would play in the regional tournament-in
part because Clemons would have attended that match if she
had known its purpose. (Clemons Dep. 106:1-4, 107:25-108:3,
110:10-111:6). Clemons believed that the challenge match was
unfair because T.W.'s opponent purportedly made bad calls
during the match. (Clemons Dep. 112:14-113:15,
119:23-120:16). Clemons also opined that Ricke's
“choice was discriminatory and the reason why he did it
is because he was tired of dealing with [T.W.].”
(Clemons Dep. 115:20-22). Ricke believed that R.S. had
surpassed T.W. “athletically and just ability-wise,
” and they were “the only two players [he]
thought that there was a question about who would play in
that spot.” (Ricke Dep. 15:6-8, 20:20-22).
T.W. learned that she would be an alternate at regionals, she
was devastated and texted her mother threatening to commit
suicide. (Clemons Dep. 126:3-10). After Clemons received the
text, she drove to school and met T.W. and two school
officials in the office. (Clemons Dep. 126:11-12). Clemons
recalled disclosing at that meeting T.W.'s diagnosis for
the first time to school administration. (Clemons Dep.
126:12-16, 127:24-128:5). At that afternoon's practice,
T.W. tried to get answers from Ricke about why she was not
selected for the regional tournament, but Clemons claimed
that he would not talk to T.W.. (Clemons Dep. 130:8-16).
Clemons perceived that Ricke was ignoring T.W., and Clemons
responded angrily to him. (Clemons Dep. 130:3-16, 131:10-17).
Ricke testified that Clemons yelled at him about his decision
at the practice following the announcement, and that other
parents in attendance expressed some concern about his
safety. (Ricke Dep. 24:8-9, 32:3-34:7). As Clemons noted, the
day of this “blow-up” was T.W.'s last
practice that season. (Clemons Dep. 124:17-22).
then withdrew T.W. from MLCHS and decided to
homeschool her for the remainder of the school year.
(Clemons Dep. 128:19-21; Neihof Dep. 8:3-13, Aug. 25, 2016,
DN 35-10). While T.W. was not invited to the end-of-the-year
team banquet, she eventually learned about the event and she
and Clemons attended anyway. (T.W. Dep. 85:5-17, 85:22-25;
Defs.' Mot. Summ. J. Ex. H, at 16). Clemons also felt
that Ricke slighted T.W. because she did not receive a bar
for her varsity letter at the banquet. (Defs.' Mot.
Summ. J. Ex. H, at 16). On June 11, 2014, Clemons wrote a
lengthy letter to Neihof raising concerns about Ricke and the
girls' tennis team. (Clemons Dep. 66:1-14; Defs.'
Mot. Summ. J. Ex. H, at 2-18).
parents reenrolled her in MLCHS for the 2014-15 school year.
(Clemons Dep. 136:8-17). Beginning on October 15, 2014,
Clemons held the first of a series of meetings with school
officials to discuss T.W.'s eligibility for academic
accommodations due to her diagnosis and T.W.'s need for a
504 Individualized Accommodation Plan (“504
Plan”). (Clemons Dep. 138:19-140:17; Defs.'
Mot. Summ. J. Ex. K, at 2-5, DN 35-12). During a third
meeting on January 27, 2015, Clemons mentioned the need to
meet with Ricke before the tennis season started “to
begin with a clean state”, but did not request any
accommodations relating to the team. (Clemons Dep.
148:8-150:10; Defs.' Mot. Summ. J. Ex. M, at 4, DN
point in February 2015, there was a meeting attended by
Clemons, Ricke, and other school personnel during which
Clemons apologized for what had transpired during the prior
season. (Ricke Dep. 43:18-45:23, 46:12-47:10). According to
Ricke, that meeting and the events of the prior
season-including T.W.'s suicide threat-caused him to
decide to exclude T.W. from the 2015 season even before the
tryouts began. (Ricke Dep. 57:10-58:4, 59:16-22). He believed
it was inadvisable to put T.W. in the same situation that
caused her so much anxiety in the prior season. (Ricke Dep.
interim, the 2015 girls' tennis season began. Ricke
distributed a team handbook to the interested students and
announced that tryouts would be conducted during the first
three days of practice. (Ricke Dep. 49:13-21; Defs.' Mot.
Summ. J. Ex. N, at 3, DN 35-15). The handbook also noted that
all interested girls may not make the team and that team
members would be selected on the following criteria:
“ability, coachability, commitment, attitude, team
chemistry or future potential for the team.”
(Defs.' Mot. Summ. J. Ex. N, at 3).
weather delayed the start of the season, but on March 9,
2015, Ricke conducted the first day of a two-day tryout
inside an auxiliary gymnasium at the school. (Ricke Dep.
51:23-52:10, 60:22-61:1, 113:13-21; Clemons Dep.
166:16-167:4). According to Ricke, the tryouts were necessary
to select a smaller team because they would only have one or
two courts to use for practice. (Ricke Dep. 50:9-51:7). The
tryouts involved an initial warmup, followed by team drills,
and then individual evaluations. (Ricke Dep. 55:18-23). In
those evaluations, Ricke was looking for skills like
coachability, footwork, and athleticism. (Ricke Dep.
55:24-56:3). In Ricke's opinion, T.W. did not perform
well in the areas of “[f]orehand, backhand, footwork, .
. . [and] volley.” (Ricke Dep. 56:13-16). Besides her
performance in the tryouts, Ricke was aware that T.W. had
threatened suicide during the prior school year and he was
concerned that he was the source of T.W.'s anxiety.
(Ricke Dep. 57:12-58:4). Because he felt it was inappropriate
to contribute to that anxiety again, Ricke did not select
T.W. for the team. (Ricke Dep. 57:12-58:4). A new player
had tried out for the 2015 team and Ricke believed the new
player would be the number-one seed on the team, making it
less likely than the year before that T.W. would qualify for
the regional tournament. (Ricke Dep. 66:15-21). When he told
T.W. that she did not make the team, she was hysterical and
he was unable to finish talking with her about her tryout.
(Ricke Dep. 62:20-63:3; T.W. Dep. 51:8-19, 54:10-12). Ricke
shared his decision with Clemons following the completion of
the tryouts and expressed his concerns about T.W.'s
well-being. (Ricke Dep. 63:14-19, 66:4-15).
March 20, 2015, Clemons complained about the tryouts and
T.W.'s exclusion from the team to MLCHS Principal Leeper.
(Clemons Dep. 179:25-180:16). The school then conducted an
internal investigation of the tryouts and concluded that the
results of the tryouts should be set aside because the
tryouts were held in a gymnasium rather than on a tennis
court, there was only limited time available for the tryouts,
and there were no head-to-head matches. (Clemons Dep.
164:23-165:14, 173:17-174:8; Defs.' Mot. Summ. J. Ex. O,
at 2, DN 35-16). The athletic director met with Ricke to
discuss the tryouts and directed Ricke to put T.W. on the
team. (Ricke Dep. 70:6-17, 70:21-24).
Friday, March 27, 2015, the school committee met with Clemons
to discuss T.W.'s 504 Plan and, for the first time,
Clemons requested accommodations relating to T.W.'s
participation on the tennis team. (Clemons Dep.
158:10-160:14; Defs.' Mot. Summ. J. Ex. P, at 2, 5-6, DN
35-17). Clemons' concerns were memorialized as follows:
Mrs. Clemons shared her concerns which include: T.W.'s
anxiety and fears with being around coach, focus on negative
statements, and social interaction in the team environment.
Mrs. Graney shared that she met with T.W. earlier this
afternoon. She said that was concerned with negative feelings
towards certain people and they were able to discuss this
when pulling in Mr. Leeper.
Mrs. Clemons shared that T.W. will be participating in
private tennis lessons to help focus. Mrs. Clemons emphasized
T.W.'s focus on negativity.
Mrs. Oakley shared some ideas including: Mrs. Graney can
focus on working with T.W. on receiving feedback. Mrs.
Clemons said that it's better for T.W. [sic] receives
constructive feedback such as always starting feedback with a
positive statement and then follow with ways to improve.
Address how she could get better, not that something was done
wrong. Mrs. Oakley also suggested doing role play with in
terms of feedback and even going to observe a couple of
tennis practices. Written feedback could also be looked into
as an option. Peer feedback, worded in a positive way. Mrs.
Graney could then provide feedback to the coaches with
T.W.'s perception to help that relationship.
In terms of social interactions, Mrs. Clemons shared that a
peer or buddy on the tennis team could help her by modeling
positive group interactions. Mrs. Clemons was good with this
idea and allowing that other student to being aware of
T.W.'s needs. In terms of anxiety and fears with
interaction with coach, working on receiving meaningful
feedback will help improve this relationship.
(Defs.' Mot. Summ. J. Ex. P, at 5). After discussing the
accommodations addressed in prior meetings, the group
discussed the following additional accommodation for the 504
Plan: “add peer mentor/encourager to 504 Accommodations
for social interactions-___? When possible [pair] T.W. with a
teammate who will model positive interactions and respond
well to T.W. Someone to guide her back to the social
interaction. She needs encouraging to interact with others.
She responds well to older peers.” (Defs.'
Mot. Summ. J. Ex. P, at 6). Finally, the minutes from the
Mom's concerns are with T.W.'s anxiety and fears of
being around the coach, her focus on negative statements and
how they will not leave her mind, and her social interactions
with teammates. At this time, mom felt additions address her
concerns. Mom can request a meeting any time to request
(Defs.' Mot. Summ. J. Ex. P, at 6).
Tuesday, March 31, 2015, T.W. participated in an exhibition
match in her first activity as a member of the girls'
tennis team. (T.W. Dep. 60:21-61:8; Clemons Dep.
183:20-184:12). The next day at practice, T.W. was to play
challenge matches against the four ranked singles players on
the team. (T.W. Dep. 61:21-62:5; Clemons Dep.
24:12-15, 183:17-186:10, 187:10-188:5, 191:22-192:5,
192:17-21). As T.W. conceded, she had not yet been seeded
that season. (T.W. Dep. 62:11-16). T.W. played and lost
matches against B.N. and A.Q.-the two top-ranked players.
(T.W. Dep. 63:3-7, 64:19-24, 93:10-18; Clemons Dep. 189:5-8).
After playing those matches, T.W. informed Ricke that she was
too tired to play any further matches that day. (Ricke Dep.
101:16-17, 102:21-103:3, 104:20-22; Clemons Dep. 190:4-9;
T.W. Dep. 61:21-62:10, 63:19-64:5, 64:19-25).
perceived the challenge matches as a setup because T.W.
“had to beat one of the four in order to participate in
an actual match.” (Clemons Dep. 186:9-10). She further
With the knowledge that [Ricke] wanted [T.W.] to play the
number one, the number two, the number three, and the number
four in that order, with knowing [T.W.]'s anxiety, and
already having been four weeks into the tennis season without
her getting to participate with the girls at all, and having
school administration come witness the match, he needed her
to act out to prove his point and why he couldn't have
her on the team.
Dep. 187:10-18). Ricke testified about those challenge
matches as follows:
Q. . . . So your expectation on Wednesday, April 1st when the
challenge matches began that TW was to play all of these
A. Pro sets.
Q. Define pro sets for me.
A. Pro set, a normal match you would play first to 6 by 2.
Typical matches are going to range, oh, if it's somewhat
of a competitive match it might be 20 games total played.
Challenge matches with a pro set is you just play to 8,
that's it, first 8.
Q. Whoever wins 8-are they sets?
A. Games. So it's a quicker way to try to get an idea of
who's better than who.
Q. So your expectation was that TW was going to play 32
A. I didn't really expect her to get through all of them,
but that's if we had time through the hour and a half I
would have given her the opportunity to play all four.
Q. Okay. You said hour and a half. Why did you say just an
hour and a half?
A. That's all our practices last.
Q. So after an hour and a half there were no-you did not have
an expectation that any other challenge matches would occur?
A. No. If she was in the middle of a match or something and
it was fairly competitive I would let her go. I was usually
pretty punctual about ending practice on the hour and a half
(Ricke Dep. 94:12-95:15). Ricke further explained that T.W.
was to be given a chance to complete the challenge matches at
the next practice. (Ricke Dep. 94:1-11).
leaving practice with T.W. on April 1, 2015, Clemons emailed
Leeper to inform him that she was withdrawing T.W. from
school and explained what had happened during practice.
(Clemons Dep. 192:22-193:6; T.W. Dep. 68:6-16; Defs.'
Mot. Summ. J. Ex. S, at 2, DN 35-20). The next day, Clemons
wrote a letter to Neihof informing him of her decision to
homeschool T.W. for the remainder of the school year.
(Clemons Dep. 193:6-8; Defs.' Mot. Summ. J. Ex. T, at 2,
16, 2015, Plaintiff filed this action asserting claims under
Title IX of the Education Amendments of 1972 (“Title
IX”), Section 504 of the Rehabilitation Act of 1983,
Equal Protection Clause of the Fourteenth Amendment, and the
Kentucky Constitution. (Compl. ¶ 12, DN 1). Following
the completion of discovery, the parties have filed competing
dispositive motions, which are ripe for decision.