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In order to understand this analysis, you will need to pretend that Kendrick Johnson was not tragically

killed when he slipped or fell into a gym mat in Lowndes High School gymnasium in January 2013. You

will need to imagine that all of the claims presented in the complaint are true on their face, and there is

a scintilla of evidence that exists somewhere that tends to prove the veracity of the claims.

Issues with the complaint: (Quick and dirty, I know I missed a bunch and this is not intended to be a

comprehensive response)

1. Sovereign Immunity: All of the state law claims which are torts (wrongful death [OCGA 51-4-5,para 1, 55-58], negligent training and supervision [para 40-48], and negligent infliction of

emotional distress [para 49-52] are barred as against the school district due to sovereign

immunity doctrine of the State of Georgia. This means that the school district is completely

immune from suit.

www.clayton.k12.ga.us/administration/humanrsc/riskmngmnt/SovImmun.pdf As for the

individuals identified and sued in their official capacities, they, too, are immune from suit as long

as the causes of action (claims made by the plaintiff) are based on activities connected to their

employment which can be deemed discretionaryfunctions. Discretionary functions are any

acts which require decision making and are within the scope of employment. For example,

creation of an anti-bullying program would be a discretionary act. Deciding where to place

closed circuit cameras in and around a school building is a discretionary act. Similarly, if officials

are monitoring, controlling or disciplining students, those are discretionary acts because they

entail the use of decision making skills and independent judgment. Only ministerial acts, or

those activities which are rote in nature would result in immunity not being available. As you

can imagine, there are very few, if any, acts performed by school policy makers and managerial

staff that are ministerial in nature. Basically, if an activity requires more than a functional brain

stem, its discretionary. Discretionary means no bueno for the Johnson family.

2. Georgia prohibits the payment of settlements and judgments by school districts: Insofar ascompensatory ($) damages are demanded from the defendants, monetary awards are NOT

available as they would have to be paid from funds collected from the taxpayers of the State of

Georgia and local counties and set aside for educational use. The Georgia Constitution prohibits

the use of funds earmarked for schools for any reason other than educational purposesas

identified in the laws and Constitution of Georgia. Wright v. Absalom, 224 Ga. 6. This would

preclude any settlement that includes monetary damages, and even any payment of damages

which are awarded by a judgment after trial. For a great discussion, read

www.oakhurstga.org/?p=1044

3. Employees sued in their individual capacity: In order to obtain damages from a state (or county)agency employee in his or her individual capacity, the plaintiffs must demonstrate that the

person(s) acted obviously and completely outside the scope of his employment duties or with

malice, bad faith or in a reckless or wanton manner. Wright v. Ashe, 220 Ga. App. 91, 1996. As

an example, if a teacher got drunk, came to class and released a noxious gas inside a locked

classroom full of children, that teacher would likely be sued in her individual capacity, because

http://www.clayton.k12.ga.us/administration/humanrsc/riskmngmnt/SovImmun.pdfhttp://www.clayton.k12.ga.us/administration/humanrsc/riskmngmnt/SovImmun.pdfhttp://www.clayton.k12.ga.us/administration/humanrsc/riskmngmnt/SovImmun.pdf

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nothing she did had anything to do with the scope of her employment and she intentionally or

recklessly created a situation which was almost guaranteed to cause great harm or even death

to those students. Merely doing the job you are paid to do, even if you dont do it perfectly at all

times, is not enough to support a claim against you as an employee in your individual capacity. If

the plaintiffs can prove that the employees were acting as individuals, and not state agents,

then sovereign immunity might not be available as a defense to the suit. However, the

defendant might still be entitled to qualified or good faith immunity, which protects officials as

long as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known. Harlow v. Fitzgerald, 457 US 800 (1982). In other

words, the employee would have had to have known, or should have known, that his acts or

failure to act (for example, not providing KJ with a personal bodyguard during school hours, or

not requiring teachers to be stationed in the gym at all times, even during change of classes)

were illegal under established law. That defendant, if found liable, would be compelled to pay

damages from his or her own property and assets. Keep in mind that it would not be enough to

allege that the acts of the employees were negligent. Rather, it would have to be proven that

the acts (or omissions) were of such a nature that they were intentionally harmful (for example,

the school board superintendent wanted KJ to be killed, so he blackmailed a student into doing

his bidding) or were so extraordinarily ill-conceived that KJs death was likely to occur

(foreseeable) and that was the desired result. Beyond this rather bizarre contortion of the law

and the actual facts in this case, according to the complaint, there was an intervening proximate

cause for Kendricks death (KJs death resulted froman assault and battery by another student

or students). The chain of causation between the defendants acts (not controlling the bullying)

and KJs ultimate death was broken by a third party who is/are identified in the complaint by

description but not by name. This boy or boys are identified as white students and as having

been in a physical altercation with KJ a year prior to his death. This is the individual who

allegedly bullied and harassed KJ throughout the months prior to his death, and who Jacquie

complained about to the administration, all to no avail. The fact that this student is not named

as a party to the lawsuit is odd (and rather telling, to be sure). That the defendants who are

named are not directly responsible for KJs misfortune(even the Johnsons arent claiming the

principal or superintendent beat KJ up and stuffed him into the mat) poses a tremendous

obstacle to establishing that the individual defendants wanted Kendrick dead, since they are not

even the actual killers.Look at Wright v. Ashe for a discussion of intervening causes in

connection with the death of a student resulting from a car accident during school hours.

4. Civil Rights claim: The attorneys misidentified the civil rights law under which they areattempting to hold the defendants liable. Namely, they indicate in Count IV (para 54) that theyare suing under Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq. However,

if you look at that section of the US Code, you will see that it refers only to GENDER

discrimination and not race, ethnic or national origin discrimination. The section of the Code

which they intended to sue under is Title VI (Civil Rights Act of 1964, 42 U.S.C. Sec 2000 et seq.).

I dont think they meantto sue the school district and employees for treating Kendrick

differently from other boys because he was a girl. But who really knows

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5. Equal Protection claim: In order to be successful in prosecuting the federal equal protectionclaim identified in the complaint, the plaintiffs must establish that the individuals identified in

the complaint violated Kendricks rights by intentionally discriminating against him on the basis

of his race. The discrimination must violate clearly established statutory or constitutional rights

of which a reasonable person would have been aware, otherwise the immunity discussed above

will act as a bar to this claim. In addition, the plaintiffs will probably need to demonstrate that

everyone being sued would have handled the situation differently if Kendrick had not been

black. Every white student who complains about being bullied was provided with a bulletproof

vest and armed escort, but Kendrick, because he was black, was not afforded this same level of

security.

6. This is what happens when you file frivolous lawsuits: you may be compelled to pay penaltiessuch as attorneys fees and expenses under O.C.G.A. 9-15-14(a) and (b). I do believe the attorney

who signed the complaint has already been assessed $90,000 in fees and expenses for filing a

frivolous suit in a prior case, so hopefully this wont come as too much of a shock to him.