Faith Elsharkawy v. Chisago Lakes Board of EducationFaith Elsharkawy v. Chisago Lakes Board of Education
v.
Defendants - Appellees
Appeal from United States District Court for the District of Minnesota
J.L.E., a freshman in the Chisago Lakes School District, tragically took his own life. J.L.E.‘s mother, Faith Elsharkawy,1 sued Appellees2 alleging, among other claims, violations of Title V of the Rehabilitation Act of 1973,3 the Americans with Disabilities Act of 1990 (ADA),4 and Minnesota‘s wrongful death statute.5 On
I. Background7
In 2015, J.L.E. transferred to a middle school in the District as a seventh grader. Because J.L.E. suffered from several longstanding health and learning disabilities, the District placed him on an individualized education plan (IEP). The District modeled J.L.E.‘s IEP after those he had at previous school districts. The District also determined that J.L.E. was eligible for special educational services. Elsharkawy agreed with the District‘s academic plan.
J.L.E. frequently missed school, often due to his health conditions. As a result of J.L.E.‘s absences, in January 2016, the District recommended that it provide him homebound educational services. Elsharkawy agreed with the District‘s recommendation. During homebound instruction, a District-hired tutor visited J.L.E. for five hours each week to help him with his homework and answer any questions he had. J.L.E.‘s doctor and the District viewed homebound instruction as temporary. It was understood that J.L.E. should return to in-person instruction unless health concerns prevented his school attendance. Accordingly, after about a month, J.L.E. returned to in-person education.
J.L.E.‘s frequent absenteeism resumed. This led to truancy concerns. During her deposition, Elsharkawy ascribed J.L.E.‘s absences to his medical conditions. She testified that the District sometimes excused J.L.E.‘s absences when he brought a
Before J.L.E. started eighth grade, the IEP team, including Elsharkawy, added more accommodations to his plan. The District also recommended that J.L.E. receive in-school counseling provided by Therapeutic Services Agency (TSA), a third-party counseling agency. Elsharkawy agreed with the District‘s recommendation. Additionally, J.L.E.‘s IEP mandated that he could not enroll in art class until he completed his work on time for two weeks for his other classes.
During that school year, J.L.E.‘s absenteeism, tardiness, and incomplete school assignments persisted. Elsharkawy believеd that the District was responsible and accused it of not following certain aspects of J.L.E.‘s IEP. For example, she believed that the District was not permitting J.L.E. to wear either his hat or hood, not allowing him to take naps as needed, not breaking down his assignments to a more understandable level, nor providing him with unlimited access to the bathroom and nurse. The District responded by reminding individual teachers of accommodations that J.L.E.‘s plan required be made for him due to his disabilities.
J.L.E. also experienced behavioral and peer-related incidents while in school. Examples of these incidents included sleeping in class, including through exams; roughhousing with his peers; and arguing with teachers when they attempted to discipline him. He received several after-school and lunch detentions for his conduct. The District remained in contact with Elsharkawy regarding these issues. For example, J.L.E.‘s special education teacher reached out to Elsharkawy to notify her that J.L.E. fell asleep “many times” at school. Id. at 217. The teacher made recommendations that she thought would improve J.L.E.‘s sleeping schedule and asked if there was anything she could do to assist.
Elsharkawy became convinced that the District was not implementing J.L.E.‘s IEP or his health plan. She also believed that the District‘s detention discipline practice negatively affected J.L.E.‘s view of school. In May 2017, Elsharkawy requested a complete special education re-еvaluation and a functional behavioral assessment (FBA). J.L.E. received the FBA to assess his educational needs but did not receive the special education re-evaluation. The FBA determined that J.L.E.‘s conduct was “reinforced and maintained by attempts to gain peer attention and acceptance” and recommended that the District provide J.L.E. “additional supervision during passing time, teaching accepting feedback or criticism, following directions, and accepting decisions of authority.” R. Doc. 28-1, at 29. The school year ended before the District could implement these recommendations.
On August 13, 2017, at Elsharkawy‘s request, the high school IEP team met to discuss J.L.E.‘s needs and Elsharkawy‘s general concerns regarding bullying. The tеam explained the District‘s bullying policy and how J.L.E. could report bullying. J.L.E.‘s case manager trained J.L.E.‘s teachers and paraprofessionals on his IEP, including his various accommodations and health plan.
J.L.E. also experienced issues with some of his peers in high school. For example, on October 3, 2017, J.L.E. and his best friend, S.K., threw broken keyboard parts on the bus ride from school. They threw the pieces inside the bus and out of
On November 8, 2017, a different student, O.O., threatened J.L.E. with violence. O.O. made the threat because he believed that he saw J.L.E. make a hand gesture simulating pointing a gun at his own head. The gesture upset O.O. because his father had recently committed suicide using a gun. J.L.E. denied making the gesture and was not disciplined for the incident. O.O. received a day of in-school suspension for the threat. Concerned that O.O. would follow through on his threats to harm J.L.E., Elsharkawy and J.L.E. met with the assistant principal, Carrie Hoffman. Hoffman spoke with teachers and learned that there had been no prior issues between J.L.E. and O.O. Hoffman planned to keep J.L.E. and O.O. separated in class and to increase supervision in common spaces like the lunchroom. The District also separated them on the bus by assigning J.L.E. to sit in the front and O.O. to sit in the back.
The next day, while on the bus ride from school, a student told O.O. that J.L.E. was talking about O.O.‘s deceased father. O.O. walked to the front of the bus and punched J.L.E. multiple times and then returned to his seat in the back of the bus. That evening, Elsharkawy took J.L.E. to the hospital for his injuries. The doctor noted that J.L.E. suffered facial contusions and a head injury. J.L.E. missed several days of school after the incident.
Hoffman was in contact with Elsharkawy following the incident. The District investigated the incident and determined that J.L.E. was not at fault. Hoffman rеferred the matter to law enforcement for criminal charges; suspended O.O. from
The incident with O.O. made J.L.E. uncomfortable at school, leading to a substantial increase in his absences. Because of those absences, on November 30, 2017, the District told Elsharkawy that J.L.E.‘s future medical-related absences would need to bе accompanied by a doctor‘s note or would be considered unexcused. The District emphasized its interest in having J.L.E. attend school on a regular basis.
On January 3, 2018, the District notified Elsharkawy that J.L.E. had accrued five unexcused absences, which, according to county protocols, would lead to truancy intervention. The District concluded that J.L.E.‘s inconsistent attendance jeopardized achievement of his IEP goals. The District informed Elsharkawy that it had other options for meeting J.L.E.‘s educational needs, such as alternative or online school if she believed that such would be a better fit for J.L.E. The District also suggested adjusting J.L.E.‘s IEP goals. Elsharkawy agreed to the IEP changes. J.L.E.‘s attendance and grades then improved. J.L.E. also becamе more socially connected at school.
But as the year progressed, J.L.E.‘s behavioral issues resurfaced. He was tardy to class, skipped detention, distracted classmates, slapped a classmate, was unfocused in class, and was defiant with teachers. Elsharkawy again expressed concerns that J.L.E.‘s teachers were not following his IEP. J.L.E.‘s special education teacher responded to the concerns by acknowledging the accommodations that he required and committed to reminding J.L.E.‘s other teachers.
On February 2, 2018, Elsharkawy requested that J.L.E. not be disciplined until the IEP team met again. The District responded that J.L.E. was subject to the same
In February 2018, Sheena Malm, J.L.E.‘s TSA counselor, notified Elsharkawy that J.L.E. needed to complete a diagnostic assessment for continued counseling services. Malm “did not think [J.L.E.] had completed [his] treatment goals, and he was not in a place to be done with therapy.” Appellees’ App. 2110. Counselor Malm left Elsharkawy voicemails and sent an email. Elsharkawy never responded to schedule the assessment or to discuss J.L.E.‘s need for continued counseling services.
J.L.E.‘s situation became more serious on the morning of April 27, 2018. That day, Elsharkawy caught J.L.E. with cigarettes and her prescribed medication. J.L.E. went to school. After his arrival at school, he texted Elsharkawy sаying that he would stab and kill himself because he was done with being alive. He told Elsharkawy that he needed a mental health day. Soon thereafter, he was tardy for class.
As J.L.E. requested, Elsharkawy picked J.L.E. up from school for a mental health day. Elsharkawy asked him if he needed psychiatric help. He said no. In her deposition, she testified that she did not think he was going to commit suicide. Elsharkawy grounded J.L.E. for stealing her medication. She testified that J.L.E. was not upset about being grounded.
Two days later, on Sunday, April 29, 2018, J.L.E. took his own life, leaving no note. His social life during the weeks leading up to his death revealed his difficulties coping. Specifically, he had mentioned killing himself multiple times to close friends and to his girlfriend. J.L.E. fought with his girlfriend throughout the weekend of his suicide.
The District denies awareness that J.L.E. was a suicide risk. Elsharkawy contends that the District was aware. According to Elsharkawy, counselor Malm told
During his deposition, S.K. did not recall the searches. Counselor Malm denies that any student reported seeing J.L.E. and S.K. search suicide methods. She also denies being aware of any program that alerts District staff to inappropriate internet searches. Dean Jennissen, the District‘s corporate designee, confirmed during his deposition that prior to J.L.E.‘s death, the District did not have a program that alerted staff to inappropriate internet searches.
Elsharkawy sued Appellees seeking damages for J.L.E.‘s death. She alleged, in relevant part, that Appellees violated the Rehabilitation Act, the ADA, and Minnesota‘s wrongful death statute. The district сourt granted summary judgment in Appellees’ favor on these claims.
Elsharkawy appeals the district court‘s judgment.
II. Discussion
On appeal, Elsharkawy argues that the district court erred when it granted summary judgment in Appellees’ favor on her Rehabilitation Act, ADA, and wrongful death claims. We disagree.
“We review the district court‘s grant of summary judgment de novo.” Lipp v. Cargill Meat Sols. Corp., 911 F.3d 537, 543 (8th Cir. 2018). We will affirm summary judgment when “the movant shows that there is no genuine dispute as to
A. Rehabilitation Act and ADA
The Rehabilitation Act and ADA both afford protections for disabled individuals attending public schools. A. J. T. ex rel. A. T. v. Osseo Area Schs., Indep. Sch. Dist. No. 279, 605 U.S. 335, 339 (2025). Under the Rehabilitation Act, “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
Prior to the Supreme Court‘s A. J. T. decision, the Eighth Circuit “appl[ied] a heightened intent standard to ADA and Rehаbilitation Act claims concerning educational opportunities.” Id. at 345. Specifically, we required plaintiffs to establish that the defendant acted in bad faith or with gross misjudgment. Id. But A. J. T. clarified that “ADA and Rehabilitation Act claims based on educational services should be subject to the same standards that apply in other disability discrimination contexts.” Id. The Supreme Court reasoned that “[t]here is no textual indication that the protections of either disability discrimination statute apply with lesser force to certain qualified individuals bringing certain kinds of claims.” Id.
A plaintiff must also “prove deliberate indifference to recover compensatory damages on [his or] her ADA and Rehabilitation Act claims.” Meagley v. City of Little Rock, 639 F.3d 384, 387 (8th Cir. 2011); see also Roberts v. City of Omaha, 723 F.3d 966, 975–76 (8th Cir. 2013) (“[A]ctions under the ADA and the Rehabilitation Act require proof of deliberate indifference.“). “[T]o show deliberate indifference, it is enough that a plaintiff prove the defendant disregarded a ‘strong likelihood’ that the challenged action would ‘result in a violation of federally protected rights.‘” A. J. T., 605 U.S. at 345 (quoting Meagley, 639 F.3d at 389).
It is undisputed that J.L.E. was a qualified individual with a disability, eligible for protections afforded by the Rehabilitation Act and ADA. It is also undisputed that the District is subject to the requirements of the Rehabilitation Act and ADA.8 The dispute here concerns the third element—whether the district discriminated against J.L.E. on the basis of his disability. Elsharkawy argues that she established the third element by presenting evidence that the District failed to respond properly to bullying or harassment, failed to follow J.L.E.‘s IEP, and punished J.L.E. for manifestations of his diagnosed conditions. Viewing the facts in the light most
Based on this record, a rational trier of fact could not conclude that the District “repeatedly failed to protect J.L.E. from bullying” or “punished J.L.E. for being bullied or reporting the bullying.” Appellant‘s Br. 63. The record demonstrates that the District responded to every incident of alleged bullying for which it received notice. In each matter, the District disciplined the alleged bully or took steps to prevent future incidents. The District‘s disciplinary and preventative measures included phone calls to parents, after school detentions, lunch detentions, discussions with students regarding respecting each other, changed seating arrangements, bus suspensiоns, and increased supervision in common spaces. On one occasion, the District even referred an incident to law enforcement for criminal charges.
The District‘s decision to discipline J.L.E., without more, does not establish that the District punished J.L.E. for being bullied. Rather, this record shows that the District disciplined J.L.E. only for his role in each situation as it did for other students. J.L.E.‘s IEP did not obligate the District to exempt J.L.E. from the same disciplinary procedures and code of conduct applicable to other students. Elsharkawy has not cited an instance where the District was aware of a bullying allegation and responded with deliberate indifference. See S.B. ex rel. A.L. v. Bd. of Educ. of Harford Cnty., 819 F.3d 69, 77 (4th Cir. 2016) (“In this case, no reasonable juror could find that the school was less than fully engaged with S.B.‘s problems, using escalating disciplinary sanctions to punish and deter student-on-student harassment and taking other protective measures on S.B.‘s behalf.“); Csutoras v. Paradise High Sch., 12 F.4th 960, 967 (9th Cir. 2021) (“The school‘s response to Csutoras‘s harassment, which he does not challenge nor do we see any basis to second-guess, was also reasonable as it included a prompt and full investigation into the incident and suspension of the assailant.“); Long v. Murray Cnty. Sch. Dist., 522 F. App‘x 576, 577 (11th Cir. 2013) (unpublished per curiam) (“We agree with the district court that the evidence shows a pattern on the part of Defendants of
Moreover, a rational trier of fact could not conclude that the District refused to follow, ignored, showed natural hostility toward, or took a “roadblocks approach” toward J.L.E.‘s IEP. Appellant‘s Br. 59. Elsharkawy contends that the District did not give J.L.E. unlimited access to the bathroom or nurse, did not allow J.L.E. to wear his hood or hat, and did not permit J.L.E. to take naps during class as needed. The record evidence fails to establish conduct by the District that a reasonable factfinder could conclude reflected deliberate indifference related to J.L.E.‘s IEP.
The record also does not establish that the District was deliberately indifferent towards J.L.E.‘s bathroom and nurse accommodations. On one occasion, Elsharkawy proactively contacted the District about J.L.E.‘s bathroom passes and was reassured that “he does have unlimited bathroom passes.” Appellees’ App. 196. J.L.E.‘s special education teacher explained to Elsharkawy that she
met with all of his teachers before school started and told them about his bathroom pass, and how they are unable to say no to him asking to use the bathroom. They also have copies of accommodations. I will send a reminder email to them. They also know that he can use “It‘s in my plan[.“] Please encourage him to say this if the teacher says no. If the teacher does not know what this means, he can tell them to look at his IEP accommodations, as it is listed in there.
Id. at 197. J.L.E.‘s special education teacher also stated that she would “send a reminder to his teachers.” Id. at 196. The Special Education Dean sent similar reminders to J.L.E.‘s teachers. Id. at 224 (“Good morning, teachers! I just wanted to send a quick reminder that [J.L.E.] is permitted to access the bathroom when ever [sic] needed, without delay.“). On the few occasions when Elsharkawy reported that a teacher denied J.L.E. access to the bathroom, the teacher was promptly reminded
Nor does the record support a finding that the District was deliberately indifferent to J.L.E.‘s hat or hood accommodation. Elsharkawy emailed J.L.E.‘s case manager regarding a teacher‘s alleged noncompliance with this accommodation. The case manager responded that she reminded the teacher of J.L.E.‘s IEP. The case manager explained that although the teachers receive J.L.E.‘s IEP and health plan every term, J.L.E. should inform teachers that certain actions that he takes are included in his plans.9 Elsharkawy does not contend that J.L.E. had any more issues wearing his hat or hood in that teacher‘s—or any teacher‘s—class. The allegations and asserted evidence do not permit a rational trier of fact to find deliberate indifference to J.L.E.‘s IEP.10
Similаrly, the record does not support a finding that the District ignored an accommodation permitting J.L.E. to sleep during class. In fact, the record does not indicate that J.L.E.‘s IEP included such an accommodation. Instead, J.L.E. had an accommodation that permitted him to “go to the health room to rest for 20 minutes (at most).” Appellees’ App. 114; see also id. at 220 (“[H]aving the option to rest would help him to stay awake at school.“). Nonetheless, the District was not deliberately indifferent toward J.L.E.‘s increased need for sleep. When J.L.E. slept
Lastly, a rational trier of fact could not conclude from the record that the District punished J.L.E. for behavior caused by his diagnosed conditions. Elsharkawy contends that the District punished J.L.E. by not allowing him to continue homebound instruction, initiating truancy proceedings, and denying J.L.E. art class enrollment. Her arguments are not supported by the record.
In January 2016, the District moved J.L.E. to homebound instruсtions “[b]ecause [J.L.E.]‘s health conditions [were] preventing him from attending school.” Id. at 93. The amendment to his plan stated that J.L.E. would receive homebound instruction “until he is able to return to school.” Id. The District returned J.L.E. to in-person instruction after discussions with J.L.E.‘s doctor. During those discussions, the doctor stated that he “wholeheartedly agree[d] that if [J.L.E.‘s] health issues do not prevent him from going to school he would be best served in the school setting.” Appellant‘s App. 135. The record demonstrates that homebound instruction was never intended to be a long-term plan. The Special Education Dean reminded Elsharkawy that the plan was to “meet every four weeks to review [J.L.E.]‘s progress and the continued need for home bound instruction.” Appellees’ Aрp. 122; see also id. at 93 (“The team will re-evaluate [J.L.E.]‘s plan every four weeks to determine if homebound instruction continues to be the most appropriate placement/level of service for him.“).
Furthermore, no reasonable factfinder could find that the Distriсt initiated truancy proceedings as a form of punishment. J.L.E.‘s IEP did not permit unexcused absences. And it is undisputed that J.L.E. missed many days of school, several of which were not supported by a doctor‘s note. Even J.L.E.‘s doctor “agree[d] with getting the county involved” with J.L.E.‘s absences. Appellant‘s App. 136.
And finally, no reasonable factfinder could find that the District‘s decision to condition J.L.E.‘s access to art class was intended to punish him. According to J.L.E.‘s IEP, “it was decided that [J.L.E.] needed to show 10 consistent days of homework completion to move to Allied Arts.” Appellees’ App. 318. Elsharkawy was a member of J.L.E.‘s IEP team. She “agree[d] with the proposal, and . . . g[a]ve permission to the school district to proceed.” Id. at 320. The IEP team, including Elsharkawy, made the decision based on J.L.E.‘s educational needs at the time. Indeed, when discussing a potential return to art class, Elsharkawy acknowledged that J.L.E. wanted to attend art class “really bad” but felt “overwhelmed” with the work he already had without art class. Id. at 206. The record cannot sustain a finding of deliberate indifference.
Accordingly, the district court did not err when it granted summary judgment in the District‘s favor on Elsharkawy‘s Rehabilitation Act and ADA claims.
Under Minnesota law, “[a] wrongful death claim is purely statutory, as common law recognized no such actions on the theory that a claim for personal injuries died with the victim.” Ortiz v. Gavenda, 590 N.W.2d 119, 121 (Minn. 1999).
Whether Appellees owed a legal duty to J.L.E. is a question of law. Smits as Trustee for Short v. Park Nicollet Health Servs., 979 N.W.2d 436, 445 (Minn. 2022). The Minnesota Supreme Court has explained:
A legal duty depends on the relationship of the parties and the foreseeable risk involved. No duty exists when the connection between the alleged danger created by a negligent act and the injury caused is too remote. What risk is foreseeable depends heavily on the facts and circumstances of each case.
Id. (citation modified). Regarding instances of suicide specifically, the Minnesota Supreme Court has stated:
It is true that traditionally we havе been reluctant to impose liability on others for self-inflicted harm. We will impose a duty to protect another person from self-inflicted harm only when the parties have a special relationship where the plaintiff is in some respect particularly vulnerable and dependent on the defendant, who in turn holds considerable power over the plaintiff‘s welfare.
Id. at 446 (citation modified).
Elsharkawy contends that Appellees should have reasonably foreseen that J.L.E. would commit suicide based on alleged bullying. But the last incident of alleged bullying occurred about three months before J.L.E. committed suicide, when O.O. allegedly gave him a “death stare.” R. Doc. 28-1, at 15. And before that, it had been nearly three months since the last reported incident, when O.O. punched J.L.E. Appellees were not aware of any continued issues related to bullying. Thus, they could not have been expected to foresee that J.L.E. was at risk of committing suicide based on bullying. In a similar case, Jasperson v. Anoka-Hennepin Indep. Sch. Dist. No. 11, No. A06-1904, 2007 WL 3153456, at *4 (Minn. Ct. App. Oct. 30, 2007) (unpublished). There, the student committed suicide on October 4, less than two months after the last known incident of alleged bullying on Seрtember 18. Id. at *4–5 (holding that “the threat that J.S[.] would harm himself was not foreseeable to the school district‘s personnel” where, among other reasons, they did not know or have “reason to know that J.S. continued to have problems with the two boys after September 18“). Jasperson‘s reasoning is applicable here.
Moreover, according to the record, even J.L.E.‘s family and friends did not foresee that J.L.E. would commit suicide. This was true despite J.L.E.‘s mentions of suicide during conversations, which Appellees were not privy to. For example, over a month before J.L.E. died, he texted a friend that he was “depressed and suicidal.” Appellees’ App. 2103. During their depositions, J.L.E.‘s friends testified that they
Finally, Elsharkawy argues that Appellees should have known that J.L.E. was at risk of committing suicide based on computer searches that he made at school. In her declaration, S.K.‘s mother states that counselor Malm told her that J.L.E. and S.K. had used a school computer to search for how to tie a hanging noose. She asserts that counselor Malm indicated “the school gets security notifications when students search or access inappropriate content online on school devices, and that another student had seen [J.L.E. and S.K.] searching this content together and had reported it.” Appellant‘s App. 388. During her deposition, S.K.‘s mother admitted that she did not know the name of the student that made the alleged report, when the student made the report, or to whom the report was supposedly made.
S.K.‘s mother‘s statements do not permit a rational trier of fact to conclude that Appellees could have foreseen J.L.E.‘s death for two reasons. First, it is undisputed that prior to J.L.E.‘s death, the District lacked the technical capability to receive software security notifications when students searched inappropriate content. Appellees’ App. 2193 (Appellees’ corporate designee, Jennissen, testifying that “[i]n 2018 when [J.L.E.] was in our school, at that time there was a filter product in place. That product did filter things through email or Google Docs, but it did not filter things through internet searches or anything to that relationship.“). Second, her statements are inadmissible hearsay, which is insufficient to defeat summary judgment. See Brooks v. Tri-Sys., Inc., 425 F.3d 1109, 1111 (8th Cir. 2005). “Though parties may identify evidence at summary judgment that would be inadmissible at
Accordingly, the district court did not err when it granted summary judgment in the District‘s favor on Elsharkawy‘s wrongful death claim.
III. Conclusion
For these reasons, we affirm the district court‘s judgment.