L.S. as mother and natural guardian of D.S., a minor v. Hanover Area School District et al

OCR transcription for search; preserved printed pages are authoritative

Case 3:22-cv-00234-JKM Document 76 Filed 01/30/26 Page1of41

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

L.S. as mother and natural guardian : No. 3:22cv234
of D.S., a minor, ;
Plaintiff : (Judge Munley)

Vv.

HANOVER AREA SCHOOL DISTRICT;:
NATHAN BARRETT; DAPHNE PUGH; :
JESSICA RAMAGLI; and MARY
FARRELL,

Defendants

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MEMORANDUM

Before the court is a motion for summary judgment filed by Defendants
Hanover Area School District, Nathan Barrett, Daphne Pugh, Jessica Ramagli,
and Mary Farrell. Having reviewed the discovery record, including deposition
testimony and documentary evidence, the court finds that there are genuine
issues of material fact that cannot be resolved without weighing evidence and
assessing witness credibility. Many of the claims asserted in this matter will
proceed to trial, particularly the claims against Defendants Hanover Area,
Ramagli, and Farrell. However, after revisiting all of defendants’ arguments in
light of the summary judgment record, the civil rights claims against Defendants
Barrett and Pugh will be dismissed based upon the principles of qualified

immunity. Summary judgment is also warranted in favor of Hanover Area on the

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failure to train claim. Therefore, defendants’ motion for summary judgment will
be granted in part and denied in part for the reasons set forth below.
Background

This matter arises from an alleged sexual assault of a three-year-old girl,
D.S., on the playground of an elementary school on November 22, 2021. The
alleged assault occurred during a teacher-supervised recess period at the end of
the school day. The alleged perpetrators were male prekindergarten students.
D.S.’s mother, L.S., is insistent that a sexual assault occurred.

Defendants did not consider the matter to be sexual assault based on the
circumstances. According to L.S.’s testimony in this matter, however, she was
the only adult eyewitness to the above events as they unfolded, or at least the
only adult eyewitness with an unobstructed view. Based on L.S.’s account, the
two students tackled D.S. to the ground, pinned her down, separated her
buttocks, and shoved mulch into her body. Furthermore, although L.S. has
evidence that she reported the incident as a sexual assault early and often, it is
undisputed that Hanover Area staff and administration did not initiate any of the
Title IX protocols set forth in its formally adopted policies.

Defendants believe the post-incident remedies offered to the family were
sufficient under the circumstances. But whether remedial efforts were sufficient

or insufficient relates back to a determination about what exactly occurred on the

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playground. By all accounts, Hanover Area administrators did not offer an
opportunity for D.S. to return to the prekindergarten program unless she shared a
class with at least one of the male students present. As a result, D.S. did not
return to Hanover Area schools until she was of kindergarten age.

L.S.’s initial pleadings set forth her lurid narrative of events, asserting that
the defendants are liable for violation of Title IX of the Education Amendments of
1972, (“Title IX”), 42 U.S.C. § 1983 (“Section 1983”), and for negligence.
Defendants previously challenged L.S.’s narrative and legal theories through a
comprehensive motion to dismiss. Plaintiff matched that motion with a detailed
response in opposition. Upon review, the court determined that most of the
claims asserted by L.S. were plausible under a Rule 12(b)(6) standard. L.S. v.

Hanover Area Sch. Dist., No. 3:22CV234, 2024 WL 2393038 (M.D. Pa. May 23,

2024).

Because the court has already resolved the legal sufficiency of plaintiff's
claims at the pleading state, the inquiry now shifts to the evidentiary record. At
the summary judgment stage, the narrative advanced by L.S.’s allegations has
been replaced with her deposition testimony. L.S.’s account creates genuine
disputes of material fact regarding the events on the playground and how
administrators responded to her reports of sexual assault thereafter—more than

enough for this case to survive the defendants’ motion for summary judgment.

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1. The Incident on the Playground

As the summary judgment record stands, the Lyndwood Learning Center is
a public elementary school in Hanover Township, Luzerne County,
Pennsylvania.’ (Doc. 70-27, SOF Jf] 2, 9). D.S. attended the district's PreK
Counts program at the school. Id. 9. At the time of the events discussed in this
memorandum, D.S. was approximately two weeks away from her fourth birthday.
(Doc. 74-16, L.S. Dep. 13:10-15).

The incident at issue occurred just prior to Hanover Area’s Thanksgiving
break. On Monday, November 22, 2021, L.S. arrived at the school prior to
dismissal as she did most days. (SOF ¥] 10; L.S. Dep. 184:23-186:10). She
watched D.S. play on Lyndwood’s playground with her prekindergarten
classmates.” Id. L.S. stood outside her vehicle on the sidewalk of an adjacent
street. (L.S. Dep., 48:14-22, 104:14—105:2). From L.S.’s vantage point, she
could see one side of a play structure, which she described as having two slides

facing in her direction. Id., 86:25—90:19.

1 When possible, the court references defendants’ statement of material facts (“SOF”), (Doc.
70-27), for facts that are not disputed in plaintiff's response to that statement (“RSOF”), (Doc.
74). Otherwise, this memorandum cites to portions of the summary judgment record supplied
by the parties. At the summary judgment stage, all facts from the record are construed in a
light most favorable to the plaintiff as the nonmoving party. See Daniels v. Sch. Dist. of
Philadelphia, 776 F.3d 181, 187 (3d Cir. 2015) (citation omitted). Consequently, this
background section construes the record in L.S.’s favor.

2 The family lived within walking distance of the school. (L.S. Dep. 179:14—180:13). L.S.
testified that she enjoyed watching D.S. play and run around at recess. Id.

4

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Four adults were monitoring the fenced-in playground, including
Defendants Jessica Ramagli and Mary Farrell, two prekindergarten teachers at
the Lyndwood school. (SOF fj 5-6; L.S. Dep. 194:25-24) They were joined by
teacher's aides, Alicia Schlauch® and Cassandra Williams.* (SOF J 7; L.S. Dep.
194:25-24). Defendant Ramagli was D.S.’s prekindergarten teacher. (L.S. Dep.
330:3-9).

The supervision on the playground that day is a point of significant
contention in this case. Id., 186:12-23. According to L.S., Williams was standing
on one side of the play structure near the portion of perimeter fence closest to
the school. Id., 195:17-20. As for Ramagli, Farrell, and Schlauch, L.S. testified
that they were standing together with their phones out on the other side of the
structure. Id., 186:24-189:7, 194:25-195:24. According to L.S., this failure to

supervise caused D.S. to be sexually assaulted.

3 Schlauch was previously a defendant in this action. She was dismissed with prejudice
pursuant to a stipulation and order dated October 2, 2023. (Doc. 58).

4 The testimony in this case demonstrates why a jury needs to weigh witness credibility and
determine whether other considerations played a role in any of the events at issue in this case.
For example, L.S. testified that she had complained to Defendant Pugh about Schlauch and
Williams leaving the playground during recess to take cigarette breaks behind Williams’s
house across the street. (Doc. 74-16, 145:15-146:14, 190:3-193:18). L.S. also appears to
have suggested that Williams was drinking alcohol on the job in her complaints. Id. From
L.S.’s testimony, such complaints may have occurred just days before the playground incident
involving D.S. Id.

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L.S. recounted what she witnessed that afternoon from across the street.
As she waited for school to be dismissed, L.S. observed her daughter playing
with two male classmates. Id., 80:16-81:10. L.S. saw one of the male students
shove D.S. to the ground. Id., 81:16—-82:9. D.S. fell onto her back and started to
kick at the male students, who were trying to grab her legs. Id.

D.S. got up and began running. Id., 82:10-83:1. D.S. then ran around the
playground structure and up a slide. Id. The male students tried to pull her pants
down as they chased her up the slide. Id., 80:16—81:10, 84:4-85:1. L.S.
indicated that D.S.’s pants “started coming down” as she was running up the
slide, exposing her underwear. Id., 82:10-83:1; 83:12-22. D.S. made it to the
top of the slide, pulled up her pants, and went down a different slide. Id.

D.S. then ran around the equipment again back to the area where she had
just climbed the slide. Id., 82:20-83:1. One of the male students tackled D.S. to
the ground in between the area of the two slides. According to L.S., D.S. landed
face down in the wood chips or mulch placed around the play structure. Id.

L.S. indicated that both male students climbed onto D.S. as she laid on the
ground. Id., 91:3-10. One student held D.S. down and pushed her face into the
mulch. Id. 79:11-16, 227:11-228:15. The other student pulled down D.S.’s pants
and underwear. Id. 228:12—229:13. According to L.S., this other male student

used his hands to separate D.S.’s buttocks and shove mulch inside D.S.’s body.

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Id. 61:11-22; 228:12-229:13. By L.S.’s account, D.S. yelled for her friend and
then screamed for help. Id. 231:25-232:5.

As D.S. was being tackled to the ground by the male students, L.S. began
running toward the playground gate from across the street according to her
testimony. (SOF J 14, L.S. Dep. 38:14-40:8, 76:1-21, 105:6-106:14, 227:21-
227:25). L.S. further indicated that she was screaming to get the attention of
school staff. Id., 231:18-233:3, 326:15-327:11. Defendants Ramagli and Farrell
testified that they heard L.S. screaming and yelling. (Doc. 74-15, Farrell Dep.
39:15-20; 41:14-24; Doc. 74-18, Ramagli Dep. 41:11-14).

According to L.S., however, Defendants Ramagli and Farrell were standing
with Schlauch, a teacher's aide, on the other side of the playground structure and
failed to react. (LS. Dep. 186:12-189:7, 195:9-20, 210:2-21, 327:14—12). By
L.S.’s account, the other teacher’s aide on the playground, Williams, was the
school employee with the most direct path to the area where D.S. had been
tackled. Id., 188:18-189:7. After being alerted by L.S. screaming, Williams went
over to the children and pulled the male students off D.S. Id., 76:1-21, 143:15—
144:7. PerL.S.’s testimony, Williams helped D.S. up from the ground and wiped
mulch off her buttocks. Id. Williams also pulled up D.S.’s underwear and pants

and gave D.S. a hug. Id. D.S. ran toward her mother crying. Id., 206:10—207:9.

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L.S. further testified that Williams looked at Defendants Farrell and Ramagli
and said, “oh, my God, these boys are just trying to put mulch in her butt.” Id.,
76:9-76:21. By L.S.’s account, she told staff that D.S. was sexually assaulted in
response to their questions about what happened. Id., 139:25-—140:8. According
to L.S.’s testimony, Farrell stated that they would need to make a report. Id.,
139:25-140:8, 211:17—212:4, 235:1-9. As further recounted by the plaintiff,
Ramagli tearfully said, “I’m sorry that this happened to you.” Id.

L.S. maintains that Defendants Ramagli and Farrell were not supervising
D.S. and the male students; they were using their phones on the other side of the
playground equipment. Id., 186:12-189:1, 194:25-195:16, 217:17-218:3, 323:8-
20.

Some other witness testimony lines up with L.S.’s account of the events.
For example, Defendant Farrell, a teacher, explained in her deposition that she
was using her cell phone on the playground — to look for an email about a staff
meeting later that day, to show Williams some of her family members’ photos on
Facebook, and to resume looking for the email about the staff meeting. (Doc. 74-
15, 38:1-40:4, 72:5-78:5). Farrell testified that she “didn’t see anything with the
children.” Id., 41:14-20. Rather, Farrell stated that she was walking toward

Defendant Ramagli and talking about the staff meeting when she first witnessed

L.S. yelling and running toward the playground. Id., 44:12-22, 45:15-23.

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D.S’s teacher, Defendant Ramagli, testified that she did not see the events
unfold and only observed Williams picking D.S. up off the ground. (Doc. 74-18,
17:11-18:4, 21:9-21). Ramagli testified that L.S. had run up to the gate of the
playground and was screaming, “her rectum, they’re in her rectum.” Id., 17:11—
18:4. According to Ramagli, she continued to ask D.S. if she was ok after the
incident because her mother, L.S., was screaming about “somebody... putting
things in her rectum.” Id., 27:2-5. Furthermore, per her testimony, Ramagli
observed mulch on D.S.’s back and on her clothes. Id., 27:6-9.

Ramagli dismissed D.S. from school to L.S. after the incident. L.S. then
drove D.S. to a hospital emergency room for medical treatment. (L.S. Dep.,
28:10-16). According to L.S., there were abrasions in between D.S.’s buttocks
and mulch inside her underwear. Id., 34:2—35:21. L.S. did not observe any
mulch in D.S.’s rectum at the time of the medical exam. Id. D.S.’s medical
records reflect that the child was evaluated for an assault. (Doc. 70-6). Those
same records indicate that there were “no external abrasions in the perianal

region.” Id.

5 As another example of other considerations a jury must weigh, Defendant Ramagli taught
L.S.’s son when he was in kindergarten a few years prior. (Doc. 74-18, Ramagli Dep., 35:9—
36:11). According to Ramagli’s testimony, she had prior communications with L.S. after D.S.’s
older brother “had hurt other students” and “had taken feces out of the toilet and [thrown] it at
[a] bathroom door.” Id. Per Ramagli, the recommendations made to L.S. to address D.S.’s
older brother’s behavior did not work out at that time. Id. This testimony was prompted by a
question asking Ramagli if there had been any prior “problem” with L.S.

S)

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According to L.S., she then travelled to the Hanover Township Police
Department building and explained the events to a patrol officer and a detective.
(L.S. Dep., 54:14-57:22). L.S. testified that the officers would not act due to the
ages of the children involved. Id.

L.S. later scheduled appointments for D.S. at the Victim’s Resource Center.
D.S. had at least 20 visits with counselors there at the time of the depositions in
this case. Id., 148:4-20. L.S. further testified that D.S. has endured nightmares
and bed-wetting incidents since the events at the Lyndwood school playground.
Id., 268:24-269:22, 310:3-311:13. According to L.S., D.S. was afraid to go back
to school, even approximately two years later at the time of her enrollment in
kindergarten. Id.

2. The District’s Responses to the Playground Incident

Although Ramagli testified that she did not witness the incident, she later
completed separate school behavior incident reports indicating that the male
students “pulled another student’s pants down” and were “throwing mulch in
his/her pants.” (Docs. 74-5, 74-6, PI. Exs. 8-9).

Williams, the teachers’ aide who helped D.S., was not deposed in this
matter. She was not named as a defendant. Williams, however, supplied a
declaration in support of the defendants’ motion for summary judgment indicating

that “[t]he playground has climbing structures and slides and other obstacles that

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impede full visibility of the entire playground from some vantage points.” (Doc.
70-24, Def. Ex. T). On the other hand, Williams did not specifically declare what
she observed regarding D.S. and the male students prior to being alerted to the
alleged assault by L.S. Id.

During the relevant period, Defendant Nathan Barrett served as Hanover
Area superintendent (hereinafter “Superintendent Barrett”). (SOF {| 3).
According to her email signature, Defendant Daphne Pugh’s served as the
district’s “Director of Curriculum K-12, Director Title |/Federal & State
Programs/PreK Counts/Virtual Academy” (hereinafter “Pre-K Director Pugh’).
(Doc. 70-13, Def. Ex. I). On the date of the incident, L.S. contacted Pre-K
Director Pugh by telephone to discuss the incident on the playground. (SOF {|
24). Pugh indicated that she would speak to Superintendent Barrett and get
back to L.S. Id.

The post-incident record reveals a divide between L.S.’s reports and
Hanover Area’s administrative response. According to an email produced in
discovery from the date of the incident, Williams reported to Pre-K Director Pugh
at 3:25 PM that she observed the boys and D.S. “on the ground” and that D.S.’s
“bottom was out.” (Doc. 70-9, Def. Ex. E). As to the report of the incident from
Williams, Pugh testified:

Q. So you would characterize Cassandra Williams’s
report as nothing out of the ordinary?

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A. That’s how it was reported.
(Doc. 74-17, 21:21-23).

Nonetheless, Pre-K Director Pugh never obtained clarity from Williams as
to whether “bottom was out” meant that D.S.’s underwear was also pulled down.
Id. 22:3-24:12. Furthermore, Williams’s declaration in support of summary
judgment also did not supply that clarity, although it was signed approximately 18
months after Pugh’s deposition.® (See Doc. 70-24, Def. Ex. T).

According to Ramagli, she completed the incident reports after she spoke
to Pre-K Director Pugh. Pugh testified that Ramagli relayed that L.S. ran over to

i

the playground and D.S.’s “pants were falling down and that...they had been
playing with the mulch.” (Doc. 74-17, 14:7-15). Pugh stated she provided this
information to Superintendent Barrett. Id.

Defendant Ramagli emailed Pugh at 4:37 PM on the date of the incident,
supplying statements from L.S. that “two boys had D.S.’s pants down and were
putting mulch in her butt.” (Doc. 70-10, Def. Ex. F). Pugh testified that she did

not recall then reporting to Superintendent Barrett what L.S. was alleging. (Doc.

74-17, 16:16-19, 19:4-8).

6 Specifically, Williams declared: “As | approached the three children, | saw that D.S.’s pants
were slightly down, and her bottom was out. This did not cause me great concern at the time
because D.S.’s pants were too big for her.” (Doc. 70-24 {J 11).

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During his deposition, Superintendent Barrett testified that he understood
the incident — as relayed by Pre-K Director Pugh in a face-to-face meeting that
day — to be “horseplay.” (Doc. 74-14, N. Barrett Dep., 12:1-16, 31:19-32:3). In
subsequent conversations with Pugh, he learned “there was actually mulch that
was in the student’s pants.” Id., 14:23-15:1. According to Barrett, he was
unaware that two boys knocked D.S. down and pulled down her pants and
underwear until he read the federal court complaint. Id., 15:2-17. Barrett also
stated he was unaware of L.S.’s allegations that mulch was placed inside D.S.’s
buttocks until that time. Id. Nonetheless, the summary judgment record includes
an email from L.S. to Barrett dated December 15, 2021. (Doc. 74-3). The record
is clear that L.S. advised Barrett at that time that D.S. had been sexually
assaulted on the playground. Id. Barrett testified that he conferred with Pre-K
Director Pugh “and [they] didn’t know where some of this stuff was coming from.”
(Doc. 74-14, N. Barrett Dep., 84:25-88:8). Barrett stated that he and Pugh
concluded that there was no evidence of the playground incident being sexual in
nature. Id.

Returning to the date of the incident, at 5:17 PM, Pre-K Director Pugh
followed up on the earlier conversation with L.S. by text message. Pugh advised
L.S. that the matter was discussed with Superintendent Barrett and that

“disciplinary action” would be taken. (Doc. 70-18, Def. Ex. N). According to

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Barrett, the actions ultimately taken were to put a “safety plan” in place and have
“a teachable moment” where “social and emotional learning about hands and feet
to [ourselves]” would be relayed. (Doc. 74-14, N. Barrett Dep., 56:14-57:21).
The safety plan also involved assigning “coordinates” to school staff members on
the playground. Id., 20:4-20, 57:2-22, 71:3-18, 76:5-22. From Barrett's
testimony, the boys lost their recess privileges for a “couple days.” Id., 65:12-24.

As for the efficacy of that safety plan, another parent, C.S., removed her
daughter from Hanover Area’s PreK Counts program in February 2022 because
a male child would “not keep his hands off’ her daughter and her daughter did
not want to return to school. (Doc. 74-11, Pl. Ex. 31, C.S. Email to
Superintendent Barrett). C.S. further accused Schlauch of being “far too
consumed in her phone” to respond to her daughter’s complaints of unwanted
touching. Id.

According to the testimony in this case, C.S. contacted L.S. about this
situation. (Doc. 74-16, L.S. Dep., 273:18-279:1). Per C.S.’s account to L.S., one
of the male students involved in D.S.’s incident touched C.S.’s child on the hip.
Id. According to Pre-K Director Pugh’s testimony, C.S. was a school employee.
(Doc. 74-17, 74:15-76:22).

D.S. did not attend school on November 23 or 24, 2021. (SOF § 31). On

Wednesday, November 24, 2021, L.S. texted Pre-K Director Pugh to inquire

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whether D.S. would be in class with the two boys involved. (Doc. 70-18, Def. Ex.
N). In that text message exchange, Pugh offered to move D.S. to Defendant
Farrell’s classroom. Id. L.S. did not agree. Rather, she replied:

| would feel more comfortable if [D.S.] stayed in Mrs.

Ramagli’s room because she does love her teacher. Is

there a way to move the boys since [D.S.] wasn’t the one

who caused the problem?

Pre-K Director Pugh replied in the negative. Pugh told L.S. that she only
had the ability to move one student into Defendant Farrell's classroom. Id.
Pugh’s last text to L.S. stated: “Let me know if moving one works for you. [D.S.]
can then stay with Ms. Ramagli.” Id.

Hanover Area’s schools were closed until December 6, 2021 for
Thanksgiving break and then for a post-holiday COVID-19 quarantine. (SOF {J
45-46). On December 6, 2021, the date school resumed in person, Pre-K
Director Pugh unilaterally moved one of the male students involved in the
incident from D.S’s class to Defendant Farrell’s class. (Doc. 74-7).

Although there were additional communications between L.S. and
Defendants Barrett and Pugh in December 2021, the parties’ positions remained

the same. L.S. requested that both boys be moved out of D.S.’s classroom.

Pre-K Director Pugh remained firm in not moving both students.

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Superintendent Barrett concurred with Pugh’s decisions. Prior to
Christmas break, Superintendent Barrett advised L.S. that her “absolute request”
would not be accommodated. (Doc. 70-7). D.S. did not return to Hanover Area’s
PreK Counts program.’

3. Defendants’ Renewed Legal Arguments

On February 17, 2022, L.S. filed a five-count complaint against the
defendants, which she amended on September 7, 2022. (Docs. 1, 32). In the
operative amended complaint, L.S. asserts several claims on behalf of D.S.
pursuant to Title IX, Section 1983, and state law.

Count One of plaintiff's amended complaint advances that Defendant
Hanover Area was deliberately indifferent to a report of sexual assault or sexual
harassment in violation of Title IX. (Doc. 32, Am. Compl. Jf] 43-49). Count Two
advances that Hanover Area retaliated against D.S. in violation of Title IX. Id. 1]
50-53.

Count Three asserts negligence claims under state law against Defendants

Hanover Area, Farrell, and Ramagli. Id. Jf] 54-59.

7 Pugh had already moved one of the male students as of December 6, 2021, D.S.’s return to
school continued to be conditioned on her sharing a classroom with one of the male students
involved in the incident or being “traded” to Defendant Farrell's classroom for the male student
that had just moved. L.S. can point to evidence discrediting the defendants’ decisions or
explanations for these decisions in either scenario.

8 The Title IX claims against Defendants Barrett and Pugh have been dismissed. (Doc. 61).

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Count Four raises Section 1983 claims against Defendants Hanover Area,
Barrett, and Pugh for allegedly violating D.S.’s equal protection rights under the
Fourteenth Amendment. Id. {] 60-69. Count Five advances a separate Section
1983 claim asserting that Defendant Hanover Area failed to train its employees to
prevent, recognize, and appropriately respond to sexual harassment and sexual
assault in violation of D.S.’s due process and equal protection rights.? Id. J] 70-
76. After a period of discovery, defendants filed a motion for summary
judgment renewing the legal arguments raised in their motion to dismiss.

For the reasons that follow, the claims against Hanover Area, Ramagli, and
Farrell in Counts One, Two, and Three will move forward. Partial summary
judgment will be granted in Hanover Area’s favor on Count Four regarding
plaintiff's disparate treatment theory of liability. But the motion for summary
judgment will be denied regarding the hostile educational environment claim
asserted against Hanover Area in Count Four under Section 1983 for violation of
the Equal Protection Clause. Additionally, summary judgment will be granted in
favor of Superintendent Barrett and Pre-K Director Pugh on Count Four because

they are immune from the Section 1983 claims advanced in this case. Summary

9 To the extent that Count Five was premised on an alleged violation of plaintiff's substantive
due process rights, that portion of the complaint has been dismissed. (Doc. 61).

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judgment will also be granted in favor of Hanover Area with respect to the single-
incident failure-to-train claim advanced against the district in Count Five.
Jurisdiction

Based on the alleged violations of Title IX and Section 1983, this court has
jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3). The court
also has supplemental jurisdiction over plaintiff's state law negligence claims
pursuant to 28 U.S.C. § 1367(a).
Standard of Review

Defendants have filed a motion for summary judgment. Summary
judgment is proper when there is no genuine issue of material fact in the case
and the moving party is entitled to judgment as a matter of law. Reedy v.
Evanson, 615 F.3d 197, 210 (3d Cir. 2010) (citation omitted); see also FED. R.
Civ. P. 56(a). “A fact is material if its resolution ‘might affect the outcome of the
suit under the governing law,’...[aJnd a dispute is genuine ‘if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.’ ” Mall

Chevrolet, Inc. v. Gen. Motors LLC, 99 F.4th 622, 631 (3d Cir. 2024) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

At this stage, the judge's function is not “to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine

issue for trial.” Anderson, 477 U.S. at 249. All “facts in dispute,” Daniels, 776

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F.3d at 187, and all “inferences to be drawn from the underlying facts must be

viewed in the light most favorable to the opposing party,” Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (cleaned up). “[W]hen

there is a disagreement about the facts or the proper inferences to be drawn from
them, a trial is required to resolve the conflicting versions of the parties.”

Peterson v. Lehigh Valley Dist. Council, United Bhd. of Carpenters & Joiners,

676 F.2d 81, 84 (3d Cir. 1982). Furthermore, “a court's role remains
circumscribed in that it is inappropriate for a court to resolve factual disputes and

to make credibility determinations.” Big Apple BMW, Inc. v. BMW of N. Am., Inc.,

974 F.2d 1358, 1363 (3d Cir. 1992) (citation omitted). “[W]here the non-moving
party's evidence contradicts the movant's, then the non-movant's must be taken
as true.” Id. (citations omitted).

Summary judgment may also be granted where a moving party
demonstrates that the nonmoving party “has not made ‘a showing sufficient to
establish the existence of an element essential to that party's case ... on which

that party will bear the burden of proof at trial.’ ” Mall Chevrolet, Inc., 99 F.4th at

630 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 332 (1986) (emphasis

removed)); see also FED. R. Civ. P. 56(c), (e)(3).

Analysis

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In review of defendants’ moving papers, they again assert, in so many
words, that: 1) no sexual assault occurred: 2) the response to the incident was
appropriate; 3) the individual defendants are immune; and 4) the school district
cannot be held liable on these facts. The parties’ briefs are again extensive, but
based on the summary judgment record, the court’s analysis need not be
regarding the claims that will move forward to trial. On those claims in Counts
One, Two, and Three, and for a portion of Count Four, L.S. has either produced
evidence to support her legal claims or demonstrated that there are genuine
issues of material fact to be resolved by a jury. As explained below, summary
judgment is warranted in favor of defendants on most of the Section 1983 claims
advanced in this case.

1. Plaintiff’s Title IX Claims

The motion for summary judgment will be denied regarding the Title IX
deliberate indifference claim and Title IX retaliation claim against Hanover Area.

Under Title IX, “[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). More simply stated, Title IX “prohibits sex

discrimination by any elementary or secondary school...that receives federal

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financial assistance.” Bostock v. Clayton Cnty., Georgia, 590 U.S. 644, 726

(2020) (Alito, J., dissenting).
Title IX implies a private right of action, which encompasses intentional sex
discrimination in the form of a federal fund recipient’s deliberate indifference to

sexual harassment of a student by another student. Jackson v. Birmingham Bd.

of Educ., 544 U.S. 167, 173 (2005) (citing Davis Next Friend LaShonda D. v.

Monroe Cnty. Bd. of Ed., 526 U.S. 629, 642 (1999) (“Davis”)). Retaliation claims

are also cognizable under Title IX because “[rJetaliation against a person
because that person has complained of sex discrimination is another form of
intentional sex discrimination encompassed by Title IX's private cause of action.”
Id.
a. Deliberate Indifference

To prevail on a Title IX deliberate indifference claim, L.S. must show that:
1) the defendant received federal funds; 2) sexual harassment occurred;
3) the defendant exercised substantial control over the harassers and the context
in which the harassment occurred; 4) the defendant had actual knowledge of the
harassment; 5) that defendant was deliberately indifferent to the harassment; and
6) the harassment was so severe, pervasive, and objectively offensive that it

deprived her daughter of her access to the educational opportunities or benefits

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provided by the school. See Hall v. Millersville Univ., 22 F.4th 397, 408 (3d Cir.

2022).

With the motion for summary judgment, Hanover Area argues that L.S. has
failed to demonstrate that sexual harassment occurred or that the school was
deliberately indifferent. There is a high bar to establish liability for deliberate
indifference under Title IX. Id. at 407. L.S. has responded to the motion for
summary judgment with evidence to clear that bar.

Sexual Harassment — Hanover Area challenges L.S.’s position that a

sexual assault occurred or even could occur given the ages of D.S. and the male
students. If L.S. is believed by a jury, however, she has described a sexual
assault as it is legally defined. See L.S., 2024 WL 2393038, at *5. Student-on-
student sexual assault constitutes sexual harassment for the purposes of Title IX.

Id.

No Bright Line — Hanover Area continues to reference the ages of D.S. and

the male students, as if an age-based bright line exists in precedential Title IX
case law. It does not. The court returns to the relevant portion of Davis:

Whether gender-oriented conduct rises to the level of
actionable “harassment” thus “depends on a constellation
of surrounding circumstances, expectations, and
relationships,” Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75, 82, 118 S.Ct. 998, 140 L.Ed.2d 201
(1998), including, but not limited to, the ages of the
harasser and the victim and the number of individuals
involved, see OCR Title IX Guidelines 12041-12042.

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Courts, moreover, must bear in mind that schools are
unlike the adult workplace and that children may regularly
interact in a manner that would be unacceptable among
adults. See, eg., Brief for National School Boards
Association et al. as Amici Curiae 11 (describing “dizzying
array of immature ... behaviors by students’).

Indeed, at least early on, students are still learning how to
interact appropriately with their peers. It is thus
understandable that, in the school setting, students often
engage in insults, banter, teasing, shoving, pushing, and
gender-specific conduct that is upsetting to the students
subjected to it.

Damages are not available for simple acts of teasing and
name-calling among school children, however, even where
these comments target differences in gender. Rather, in
the context of student-on-student harassment, damages
are available only where the behavior is so severe,
pervasive, and objectively offensive that it denies its
victims the equal access to education that Title IX is
designed to protect.
526 U.S. at 651-52 (formatting modified).

Davis makes clear that there are “very real limitations on a funding
recipient's liability under Title IX.” Id. at 652. For example, it is not enough that a
student has been teased or called offensive names even if it causes that child to
refuse to attend school or causes a drop in their grades. Id. In response to the

dissenting opinion, Davis also contains skepticism that a single instance of peer-

on-peer harassment would be serious enough to systemically deny a victim equal

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access to education, but the majority did not explicitly draw a line based on age
or require that there be more than one incident of harassment. Id. at 652-53.

According to L.S.’s eyewitness testimony, this case involves more than
teasing, shoving, or pushing. Per L.S.’s “own two eyes,” D.S. was tackled by two
boys and anally penetrated by a foreign object. Thus, at this posture, the court
must treat the incident as severe, pervasive, and objectively offensive sexual
harassment for the purposes of plaintiff's Title IX deliberate indifference claim
against the district. The parties present two irreconcilable versions of the facts,
the resolution of which belongs to a jury.

The school district also asks the court to “acknowledge that the boys (ages
3 and 4) were presumptively biologically incapable of [sexual] impulse or desire.”
(Doc. 70-2, Def. Br. in Supp. at 13). To that end, Hanover Area requests that
the undersigned take judicial notice of those biological incapabilities. Id. But
clearly, the biological capabilities or incapabilities of prekindergarten-age boys
are not facts that may be judicially noticed.'° Rather, these are matters requiring
particularized knowledge, skill, experience, training or education, /.e., matters

requiring expert testimony. See FED. R. EviD. 702. To obtain summary judgment,

10 Under the Federal Rules of Evidence, the court may only judicially notice a fact that is not
subject to reasonable dispute because it: 1) “is generally known within the trial court's territorial
jurisdiction;” or 2) “can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” FED. R. EviD. 201.

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Hanover Area would have had to support this factual position with materials in
the record such as unrebutted expert testimony. See FED. R. Civ. P. 56(c)(1)(A).
Hanover Area did not procure an expert to provide such an opinion.
Consequently, summary judgment will not be granted based upon the district's
unsupported positions about child development.

Deliberate Indifference — Hanover Area also argues that the conduct of its

staff and administrators did not evince deliberate indifference as required for a
Title IX claim. Under the law, Hanover Area’s deliberate indifference “must
cause the harassment or make the victim vulnerable to it” for the Title IX claim to

survive summary judgment. McAvoy v. Dickinson Coll., 115 F.4th 220, 228 (3d

Cir. 2024) (citing Davis, 526 U.S. at 644—-45)."' “[D]eliberate indifference occurs

11 In the accompanying footnote, the Third Circuit noted:

Based on the Supreme Court's holding that liability may arise if a
school has made a student vulnerable to harassment, some Courts
of Appeals have held that students need not show that the school's
deliberate indifference led to any additional post-notice incidents of
harassment. See, e.g., Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257,
274 (4th Cir. 2021). Other Courts of Appeals have held, in contrast,
that post-notice incidents of harassment are required before liability
for deliberate indifference may attach. See, e.g., Kollaritsch v. Mich.
State Univ. Bd. of Trs., 944 F.3d 613, 622-23 (6th Cir. 2019). Our
Court has not yet decided this issue and we need not do so in this
case.

McAvoy, 115 F.4th at 228. Based on defendants’ responses to the playground incident, D.S.
did not return to school. Additionally, L.S. has provided evidence that another female
prekindergarten student was removed from the program by her mother, a school employee, for
continued unwanted touching by one of the male students after the incident involving D.S.

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only where the Title IX recipient's response ‘is clearly unreasonable in light of the
known circumstances.’ ” Id. (quoting Davis, 526 U.S. at 648). To satisfy Title IX’s
express terms, Hanover Area “cannot be liable unless the harassment is extreme
enough to deprive the victim of access to the educational opportunities or
benefits that the Title IX recipient provides.” Id. (quoting Davis, 526 U.S. at 650).
Whether Hanover Area’s response to the incident meets the deliberate
indifference standard is a question of fact. See id. (citing Hall, 22 F.4th at 410-
11). This question of fact cannot be resolved by the court on summary judgment.
After a thorough review of the record, a jury’s determination of what actually
transpired on the playground governs whether the district responded reasonably
and appropriately or with deliberate indifference. For her part, L.S. has advanced
evidence that, despite actual notice, no teacher or administrator believed her
account that male students violently shoved playground mulch into D.S.’s rectum.
Viewing the evidence in the light most favorable to L.S. as the non-moving
party, the district’s response was to downplay the matter as less serious, non-
sexual misconduct—“pushing and shoving and rough horseplay.” (Doc. 76-14, N.
Barrett Dep., 41:12-42:6). Based on this view, D.S. would have remained in
class with one of the male students who allegedly placed playground mulch
inside her rectum. D.S. would also have to return to the playground with both

boys if she returned to school. Id. 65:12—66:2. Thus, a jury may reasonably

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believe that D.S. was violated as described and that L.S.’s remedial requests
were met at a district level with disbelief and disengagement under those
circumstances. Consequently, defendants’ motion for summary judgment will be
denied as to the Title IX deliberate indifference claim.
b. Retaliation
To establish a prima facie case of retaliation in violation of Title IX, a
plaintiff must show: (1) that she engaged in protected activity; (2) she suffered an

adverse action; and (3) there was a causal connection between the two. Doe v.

Mercy Cath. Med. Ctr., 850 F.3d 545, 564 (3d Cir. 2017) (citing Moore v. City of

Philadelphia, 461 F.3d 331, 340-42 (3d Cir. 2006)). The district continues to

argue that D.S. did not experience an adverse action. As previously addressed:

Assuming the facts of the complaint to be true, D.S.
suffered materially adverse action based on the parties’
reactions and responses to what took place on the
playground: she was caused to _ stop attending
prekindergarten. On a motion to dismiss, the court can
only consider the plaintiff's factual position. A reasonable
parent in plaintiff's shoes would have been dissuaded from
making a charge of sex-based discrimination on behalf of
her child if it would cause her child to have to leave school
based on school officials' conduct following the report.

L.S., 2024 WL 2393038, at *10.
The evidentiary record has caught up to the pleadings in this case. L.S.

has provided evidence to rebut the one-sided view of the facts advanced in the

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defendants’ moving papers. Genuine issues of material fact preclude summary
judgment as to plaintiff's Title IX retaliation claim."
2. Plaintiff's Section 1983 Claims
a. Section 1983 Claims Against Hanover Area

Defendants also move for summary judgment on the Section 1983 claims
lodged against Defendants Hanover Area, Barrett, and Pugh. As previously
noted, this matter involves alleged violations of the Equal Protection Clause.
Plaintiff previously advanced two different theories of liability against Hanover
Area in this matter, disparate treatment and hostile educational environment.
L.S., 2024 WL 2393038, at *20. However, in opposing summary judgment,
plaintiff did not squarely address arguments that judgment should be granted in

defendants’ favor on the disparate treatment theory of liability. (Doc. 73, PI. Br.

12 As for Hanover Area’s arguments in this section of their brief that D.S. was “just under 4
years old and enrolled in a non-compulsory preschool program; and that the two class options
are both age-appropriate preschool! programs{,]” (Doc. 70-2 at 24), this does not preclude a
finding that adverse action occurred. As discussed in the prior memorandum, Hanover Area
offered prekindergarten pursuant to federal and state funding programs tied to the income
levels of the families in the district. While prekindergarten is non-compulsory, Hanover Area
offered prekindergarten presumably for no other reason but to improve school outcomes for its
students, including D.S. Ifa jury credits L.S.’s version of the facts, they may reasonably
conclude that Hanover Area’s conduct toward D.S. was in retaliation for L.S. complaints about
a sexual assault occurring.

Along those same lines, Hanover Area argues that its administrators did not act with retaliatory
intent. (Doc. 70-2 at 24). However, a jury finding truth in L.S.’s account may reasonably
question Pre-K Director Pugh’s explanations about why she moved one male student, but not
the other based on the court’s review of the record. (Doc. 74-10, Def. Resp. to Interrog., at
ECF p. 4; Doc. 74-18, J. Ramagli Dep. 6:13-16).

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in Opp. at 48-50). Instead, plaintiff signals that she wishes to proceed only on a
hostile educational environment theory of liability. Id. The court will thus grant
partial summary judgment in favor of Hanover Area to the extent that plaintiff
alleged a Section 1983 disparate treatment claim. The court will proceed to only
address the hostile educational environment claim.

To establish a hostile environment equal protection claim, a plaintiff must
“prove all the elements of her Title IX claim and that the harassment was the

result of municipal custom, policy, or practice.” Goodwin v. Pennridge Sch. Dist.,

389 F. Supp. 3d 304, 319-20 (E.D. Pa. 2019) (citing Fitzgerald v. Barnstable

Sch. Comm., 555 U.S. 246, 257-58 (2009); Monell v. New York City Dept. of

Soc. Servs., 436 U.S. 658, 694 (1978)). The policy or custom must also be the

proximate cause of her injuries. Id. (citation omitted).

Here, for the reasons discussed above, the evidentiary record precludes
summary judgment on the Title IX claims. L.S. has also supplied evidence in
opposition to summary judgment that duly authorized district decision-makers
failed to recognize, investigate, and respond to a report of sexual assault and/or
decided on an ad hoc basis not to enforce existing policies, such as the district's
Title IX policy.

Defendants repeat their arguments that Superintendent Barrett and Pre-K

Director Pugh did not have final policymaking authority in their roles with Hanover

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Area. The court previously reviewed the law based on the allegations in the
pleadings. L.S., 2024 WL 2393038 at *16-19. The court also previously
reviewed relevant Hanover Area policies about prekindergarten education and
classroom placement, which expressly delegated authority to the superintendent
or a designee. Id. With the record provided, particularly Barrett and Pugh’s
deposition testimony, the court need not adjust that prior analysis. Genuine
issues of material fact preclude summary judgment.

Failure to Train — Plaintiff also advances a failure to train theory of

municipal liability against Hanover Area. The court previously addressed
Hanover Area’s legal arguments against L.S.’s allegations and determined that a
claim based on a single incident could proceed under the facts alleged in the
pleadings. L.S., 2024 WL 2393038 at *22—23. Specifically, the earlier
memorandum noted that:

A single-incident-based failure to train claim against a
school district survives a motion to dismiss where a plaintiff
alleges that a school enacted a policy conveying its
awareness of the consequences of not following the policy,
failed to train employees on that policy, and a child
sustained a constitutional injury from that failure to train.

Id. at *23 (citing L.R. v. Sch. Dist. of Philadelphia, 60 F. Supp. 3d 584, 599-601

(E.D. Pa. 2014), aff'd, 836 F.3d 235 (3d Cir. 2016)).

Since that time, the Third Circuit Court of Appeals has reiterated that

single-incident failure-to-train claims are “vanishingly rare” and may proceed in

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only “unusual” and “extreme” cases. Miller v. City of Philadelphia, 162 F.4th 88,

94 (3d Cir. 2025) (citing City of Canton v. Harris, 489 U.S. 378, 390, n.10 (1989);

Connick v. Thompson, 563 U.S. 51, 63-64 (2011); Hightower v. City of

Philadelphia, 130 F.4th 352, 357 (3d Cir. 2025)). It has emphasized that the

United States Supreme Court has never found this bar satisfied and that the
hypothetical example offered in Canton involved life-or-death consequences from
a failure to train—‘if a city armed its police with guns and set them loose without
any legal training on when to use them.” Hightower, 130 F.4th at 357.

Sexual assaults in schools involve life-or-death consequences. Title IX
was enacted in 1972. Davis was decided in 1999. The Department of Education
issued the applicable Title IX regulations before the 2020-2021 school year.
Based on the promulgation of the 2020 regulations, the Hanover Area school
board issued a revised, comprehensive Title IX policy in March 2021, which
named a Compliance Officer and Title IX coordinator, Karen McHale. (See Doc.
74-8, Hanover Area School District Policy § 103 “Discrimination/Title IX Sexual
Harassment Affecting Students” at ECF pp. 1-42). This incident occurred
several months into the 2021-2022 school year.

Defendant Ramagli, D.S.’s teacher, had no knowledge of Title IX, other

than it having to do with gender. (Doc. 74-1, J. Ramagli Dep. 56:21-60:16). She

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could not identify the district’s Title IX coordinator at the time of her deposition,
approximately 18 months after the incident. Id. She testified:

Q. Whatever training you've had at that school district

was not enough to inform you who to report Title [IX] issues

to?

A. — I’m not exactly sure what Title [IX] is, so | don’t know.

Superintendent Barrett testified that L.S.’s allegations of sexual assault did
not raise any Title IX concerns because the report was coming from L.S. and not
the Victim’s Resource Center.'? (Doc. 74-14, N. Barrett Dep. 92:25-93:17,
102:25—103:6). Furthermore, Barrett was unsure whether Title IX applied to
sexual assaults. Id., 98:3-19. He testified that the district's Title IX policy was on
its website, but there was no requirement for school employees to read it. Id.,
98:19-25. Pre-K Director Pugh answered, “I! don’t recall,” to several questions

related to Title IX training during her deposition and “not to my knowledge,” with

13 Barrett also testified as follows:

Q. Assuming those boys were putting mulch in [D.S.’s] behind, can
we agree that that incident was sexual in nature?

[Defense Counsel]: Objection.
[Barrett]: Yes, that would be.

(Doc. 74-14, 104:14-18).

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respect to reporting the incident regarding D.S. to the district's Title IX
coordinator. (Doc. 74-17, 80:11—83:20).

Through litigation, plaintiff has identified serious deficiencies in the working
knowledge of Hanover Area’s staff and administrators with respect to Title IX.
Nonetheless, summary judgment must be granted in favor of Hanover Area on
the failure-to-train claim advanced in this case.

To succeed on a Section 1983 failure-to-train claim, a plaintiff must

demonstrate that the training deficiency actually caused the injury. Reitz v. Cnty.

of Bucks, 125 F.3d 139, 145 (3d Cir. 1997) (citing Canton, 489 U.S. at 391).

In opposition to summary judgment, L.S. has not demonstrated how D.S.’s
outcome would have been different if Williams, Schlauch, Farrell, Ramagli, Pugh,
or even Barrett were fully versed in Title IX, its attendant regulations, and the
district's Title IX policies. In short, Ramagli, Pugh, and Barrett did not believe
L.S.’s account of the events on the playground. Plaintiff has come forward with
no evidence that the district’s Title IX coordinator/investigator would have.
Furthermore, Barrett supported Pugh’s view of the remedies to be offered in
D.S.’s case since she was the Pre-K Director. Plaintiff has no evidence that the
“corrective action” would have been different had the Title IX coordinator been
involved. Moreover, if teachers, staff, and administrators followed the Title IX

policies in place at the district, Barrett would have heard any appeals if L.S. was

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unsatisfied about any formal Title IX outcomes. (Doc. 74-8, ECF p. 24; Doc. 74-
14, N. Barrett Dep. 49:24-50:11). Therefore, within a Title IX structure or not,
Barrett’s decision would have been the same based on a review of his testimony.
Consequently, based on a failure to come forward with evidence on causation,
summary judgment will be granted in Hanover Area’s favor on plaintiff's Section
1983 failure-to-train claim."

b. Section 1983 Claims Against Superintendent Barrett and Pre-K
Director Pugh

Defendants again assert that Defendants Barrett and Pugh enjoy qualified
immunity from the Section 1983 claims asserted against them.'® Based on the
summary judgment record, the court will fully revisit its prior analysis.

“There is a well-settled two-part test to determine whether government

officials should receive qualified immunity.” Montemuro v. Jim Thorpe Area Sch.

Dist., 99 F.4th 639, 642 (3d Cir. 2024) (citing Anglemeyer v. Ammons, 92 F.4th

184, 188 (3d Cir. 2024); Pearson v. Callahan, 555 U.S. 223, 236 (2009)). To

overcome the qualified immunity defense, a plaintiff must show two things: 1) that

the official violated a statutory or constitutional right; and 2) that the right was

14 The court reiterates that the Title IX claims and the Section 1983 hostile educational
environment claim against Hanover Area will proceed to trial.

15 A school district is not eligible for qualified immunity. See Montemuro v. Jim Thorpe Area
Sch. Dist., 99 F.4th 639, 642 (3d Cir. 2024) (citation omitted).

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clearly established at the time of the challenged conduct. Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982).

Although L.S. has enough evidence to go to a jury on violations of the
equal protection clause through a hostile educational environment theory, she
must overcome the “clearly established” prong of the qualified immunity analysis
with respect to her claims against Barrett and Pugh. That is, “a government
official's conduct violates clearly established law when, at the time of the
challenged conduct, the contours of a right are sufficiently clear that every
reasonable official would have understood that what he is doing violates that

right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Existing case law, “must

give the official ‘fair warning’ that his conduct is unconstitutional.” Stringer v.

Cnty. of Bucks, 141 F.4th 76, 85 (3d Cir. 2025) (citing Hope v. Pelzer, 536 U.S.

730, 741 (2002)).
Under the law, the court must “first define the right specifically, based on
the particular facts[,]” then “figure out if a reasonable [government official] would

have been on notice that his conduct would violate that right.” Otero v. Kane, 161

F.4th 189, 194 (3d Cir. 2025) (citations omitted). “Typically, analogous precedent
from the Supreme Court or [the Third Circuit] or a consensus of persuasive
authority in the Courts of Appeals is required.” Stringer, 141 F.4th at 85 (citing

Clark v. Coupe, 55 F.4th 167, 182 (3d Cir. 2022); Peroza-Benitez v. Smith, 994

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F.3d 157, 165 (3d Cir. 2021)). Analogous means factually analogous. Clark, 55
F.4th at 181. This does not mean “a case directly on point, but existing
precedent must have placed the statutory or constitutional question beyond
debate.” al-Kidd, 563 U.S. at 741.

The court previously defined D.S.’s Equal Protection right as “the right to be
free from the deliberate indifference of school officials to reports of student-on-
student sexual harassment/sexual assault.” L.S., 2024 WL 2393038, at *22. This

articulation was too abstract. See Urda v. Sokso, 146 F.4th 311, 314-15 (3d Cir.

2025) (citing Anderson v. Creighton, 483 U.S. 635, 639-41 (1987); Brosseau v.

Haugen, 543 U.S. 194, 199 (2004) (per curiam); al-Kidd, 563 U.S. at 742;

Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam); White v. Pauly, 580 U.S.

73, 79 (2017) (per curiam); District of Columbia v. Wesby, 583 U.S. 48, 64

(2018); City of Escondido v. Emmons, 586 U.S. 38, 42—43 (2019) (per curiam);

Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5-6 (2021) (per curiam)).

Rather, to overcome qualified immunity, it must be clear to a reasonable
official that their conduct was unlawful in the situation they confronted. Saucier v.

Katz, 533 U.S. 194, 202 (2001), overruled on other grounds by Pearson, 555

U.S. at 236. “The dispositive question is ‘whether the violative nature of
particular conduct is clearly established.’ ” Mullenix, 577 U.S. at 12 (quoting al-

Kidd, 563 U.S. at 742 and adding emphasis). Put another way, “existing law

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must clearly establish that what this [school official] did in these circumstances
violated the plaintiff's rights.” Urda, 146 F.4th at 314 (emphasis added).

Thus, as emphasized by these cases, the court must add a descriptor
about Superintendent Barrett and Pre-K Director Pugh’s conduct and better
define the situation they confronted. With this adjustment, the question
presented here is whether preexisting law clearly established that a school
administrator violates a female prekindergartner’s right to equal protection of the
laws when they refuse a parent request to remove two male students from her
classroom after the parent complained that those students sexually assaulted her
daughter.

There are no materially similar cases previously decided by the Third
Circuit. In the absence of controlling precedent, the court previously found a
“robust consensus of persuasive authority” from the other Courts of Appeals.

L.S., 2024 WL 2393038, at *22 (citing Feminist Majority Found. v. Hurley, 911

F.3d 674, 702 (4th Cir. 2018); Stiles ex rel. D.S. v. Grainger Cty., 819 F.3d 834,

851-52 (6th Cir. 2016); Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996); Flores

v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130 (9th Cir. 2003); Murrell v. Sch.

Dist. No. 1, Denver, 186 F.3d 1238, 1250 (10th Cir. 1999); Hill v. Cundiff, 797

F.3d 948, 978 (11th Cir. 2015)). Upon re-review, these cases form a patchwork

to support a more broadly defined legal right—"a victim of student-on-student

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sexual harassment can pursue an equal protection claim predicated on a school

administrator’s deliberate indifference to such harassment.” Feminist Majority

Foundation, 911 F.3d at 702. But these out-of-circuit decisions do not form a

robust consensus regarding allegations of sexual assault lobbied by the mother
of a female prekindergartner against male prekindergartners.'© Consequently,
when using a more granular definition as required, Superintendent Barrett and
Pre-K Director Pugh enjoy qualified immunity from the Section 1983 claims
asserted against them in this matter. Summary judgment will be granted in their
favor.
3. Plaintiff's Negligence Claims

L.S. also brings state law negligence claims against Hanover Area and the
prekindergarten teachers supervising the playground, Defendants Ramagli and
Farrell. These defendants renew their arguments that they are immune under
the Pennsylvania Political Subdivision Tort Claims Act (“PSTCA”). Additionally,

Defendants Ramagli and Farrell re-raise the argument that they enjoy common

16 Stiles involved middle school bullying. 819 F.3d at 840-46. Murrell involved special
education students and high school staff members who allegedly actively participated in the
concealment of sexual assault. 186 F.3d at 1243-44. Feminist Majority Foundation involved a
university president's response to social media harassment. 911 F.3d at 680-85. Nabozny
and Flores involved sexual orientation harassment and discrimination. Flores, 324 F.3d at
1137-38 (discussing Nabozny). Hill involved a situation where school officials decided to use
a female middle school student in a sting operation to catch a male student in the act of sexual
harassment and the male student raped the female student. 797 F.3d at 955-56.

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law public official immunity. Ramagli and Farrell also challenge L.S.’s evidence
of the negligence.

First, Hanover Area renews its arguments that “immunity is eliminated only
when the alleged sexual abuse is committed by an employee of the local
agency.” (Doc. 70-2, Def. Br. in Supp. at 35). As predicted by the court before
and again now, the sexual abuse exception to governmental immunity, 42 PA.
CONS. STAT. § 8542(b)(9) (“Section 8542(b)(9)"), does not limit the exception only
to sexual abuse committed by local agency employees. L.S., 2024 WL 2393038
at *11-—13 (discussing 42 PA. CONS. STAT. §§ 8541, 8542 (a)-(b), (b)(9)).

State jurisprudence now lines up with the court's previous analysis. 1”
Specifically, the Commonwealth Court of Pennsylvania has described the court’s
previous forecasting about Section 8542(b)(9) to be a “reasonable, albeit

imperfect interpretation[]” of the statute. L.F.V. by Varano v. S. Philadelphia High

sch., 340 A.3d 395, 409 and n.28 (Pa. Commw. Ct. 2025) (discussing L.S., 2024

WL 2393038, at *13), appeal granted, No. 243 EAL 2025, 2025 WL 3456607 (Pa.

17 The specific issue involved in this case has not been addressed by the Supreme Court of
Pennsylvania. Where no reported decision of the Pennsylvania Supreme Court exists, it is the
duty of a district court judge to predict how the Pennsylvania Supreme Court would interpret
relevant provisions of the PSTCA if presented with this case. Nationwide Mut. Ins. Co. v.
Buffetta, 230 F.3d 634, 637 (3d Cir. 2000). In making that prediction, the decisions of
intermediate Pennsylvania appellate courts receive significant weight in the absence of an
indication that the highest state court would rule otherwise. See SodexoMAGIC, LLC v. Drexel
Univ., 24 F.4th 183, 204 (3d Cir. 2022) (citations and quotation marks omitted).

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Dec. 2, 2025). Despite that tempering, the Commonwealth Court relied on
legislative history and this court’s prior memorandum to conclude that Section
8542(b)(9)’s waiver of immunity encompasses situations where third parties
commit sexual abuse, not just employees of the local agency. Id. at 399, 405-11.
The undersigned predicts that the Supreme Court of Pennsylvania will similarly
interpret the sexual abuse exception to the PSTCA. Thus, if L.S.’s account of the
events on the playground is believed by a jury, Hanover Area is not immune from
the negligence claim.

Second, Defendants Ramagli and Farrell continue to assert that they enjoy
PSTCA immunity and “common law public official immunity.” For the reasons
previously asserted, the court rejects those arguments. L.S., 2024 WL 2393038,
at *15. The evidentiary record requires no change in the analysis. The Supreme

Court of Pennsylvania’s recent decision in Winig v. Off. of Dist. Att'y of

Philadelphia, 347 A.3d 2, 11-12 (Pa. 2025) also does not alter the analysis.

Finally, Defendants Ramagli and Farrell argue that plaintiff has not come
forward with evidence demonstrating that they were negligent. Viewing the
summary judgment record in a light most favorable to the plaintiff as the non-
moving party, there is a clear path for a jury to find that Ramagli and Farrell
breached their duties to D.S. on the playground, which caused D.S. to sustain an

injury. Arguments advanced by defendants about the facts with respect to

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negligent supervision are better suited for a jury. Accordingly, the negligence
claims against Hanover Area, Ramagli, and Farrell will proceed to trial where
those arguments can be made.
Conclusion

For the reasons set forth above, defendants’ motion for summary judgment
will be granted in part and denied in part. The motion will be granted as to the
Section 1983 claims against Hanover Area premised on disparate treatment as a
violation of the Equal Protection Clause, but not on the portion of the claim
premised on a hostile educational environment theory of liability. The motion will
be granted as to the Section 1983 claim against Hanover Area premised on a
failure-to-train. Furthermore, the motion will also be granted as to the Section
1983 claims against Nathan Barrett and Daphne Pugh because of their qualified
immunity.

Defendants’ motion for summary judgment will otherwise be denied. An
appropriate order follows.
Date: _/ LEC Cr S

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