10 - Defendants' Answer To Plaintiff's Complaint (11.04.22)

USDC IN/ND case 3:22-cv-00730-DRL-MGG document 10 filed 11/04/22 page 1 of 50
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
NICOLE BALL, As Parent of )

RIO ALLRED, Deceased, )
)
Plaintiff )
v. )
) CASE NO.: 3:22-cv-00730
ELKHART COMMUNITY SCHOOLS and )
ELKHART COMMUNITY SCHOOLS )
BOARD OF TRUSTEES, )
)
Defendants. )
DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
Defendants Elkhart Community Schools and Elkhart Community Schools Board of
Trustees (collectively “Defendants”), by counsel, for their Answer to Plaintiff’s Complaint
(“Complaint”), respond as follows:
I. PARTIES
1. Plaintiff Nicole Ball brings this action in her capacity as the biological mother of
Rio Allred, who was 12 years old when she died by suicide March 14, 2022.
ANSWER: Defendants state that no response is required, but to the extent one is
required, Defendants deny.
2. Defendants Elkhart Community School District and its governing body, the Board
of School Trustees of Elkhart Community Schools (collectively “the District” unless otherwise
noted), are an Indiana public school corporation and school board, respectively, which receive
federal financial assistance. The board is the governing body of the Elkhart public school system
and oversees, controls and manages its personnel and operations. As such, it has final
policymaking authority over the Elkhart school corporation. The District is a public “educational
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institution” as defined by 20 U.S.C. § 1681(c) which operates a “program or activity” as defined
by 20 U.S.C. § 1687. Its principal offices are located in Elkhart County, Indiana. The school(s)
where the events giving rise to these claims are owned, operated, maintained, staffed and funded
by the District.
ANSWER: Defendants admit that Elkhart Community Schools is an Indiana public
school corporation as defined in Ind. Code § 20-18-2-16 and that the Board of School of Trustees
of Elkhart Community Schools is its governing board and possesses the powers in Ind. Code §
20-26-5-4. Defendants also admit that the principal offices of Elkhart Community Schools are
located in Elkhart County, Indiana. Further answering, Defendants state that Elkhart Community
Schools is a public “educational institution” as defined by 20 U.S.C. § 1681(c), that it operates a
“program or activity” as defined by 20 U.S.C. § 1687, and that it owns, operates, maintains,
staffs and funds Pinewood Elementary and North Side Middle School. Defendants deny the
remaining allegations in paragraph 2 of the Complaint.
II. JURISDICTION
3. Plaintiff brings this action on behalf of her daughter to redress a hostile
educational environment pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C.
§ 1681(a) and the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution, as more fully set forth below.
4. This Court has jurisdiction over Plaintiff’s claim(s) arising under the Constitution
or laws of the United States pursuant to 28 U.S.C. §§ 1331, 1343 and 42 U.S.C. § 1983.
Supplemental jurisdiction over Plaintiff’s state law claim(s) exists under 28 U.S.C. § 1367.
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ANSWER: Defendants admit the Court has subject matter jurisdiction over Plaintiff’s
federal claims and that it may exercise supplemental jurisdiction over Plaintiff’s state law claims.
Defendants deny the remaining allegations in paragraph 4 of the Complaint.
III. VENUE
5. Venue is in this judicial district pursuant 28 U.S.C. § 1391(b) because the District
maintains its principal offices in this district and all events giving rise to this action occurred in
this district.
ANSWER: Defendants admit venue is proper in this judicial district pursuant to 28
U.S.C. § 1391(b), but Defendants deny any remaining allegations in paragraph 5 of the
Complaint.
IV. FACTS
6. At all times relevant, Rio was a minor female student enrolled in the District,
where she attended Pinewood Elementary then North Side Middle School in Elkhart, Indiana.
She was a smart, funny, creative and happy girl who loved reading, drawing sketches, music and
school. She adored her 7-year old little sister.
ANSWER: Defendants admit that Rio was a minor female student enrolled in the
District where she attended Pinewood Elementary then North Side Middle School in Elkhart,
Indiana and that she was a smart, funny, creative and happy girl. Defendants are without
knowledge or information sufficient to form a belief regarding the truth of the remaining
allegations in paragraph 6 of the Complaint and, therefore, deny the same.
7. The District posted this description of her on its Facebook page: “Rio had a
beautiful smile, an infectious laugh, an incredible sense of humor, a kind heart, and brought
happiness to those around her with her uplifting attitude. She was a bright light in her classes,
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including band and choir, and faced difficult tasks like playing a solo or speaking at a concert
with fierce determination and beaming confidence. Rio was an incredible person who loved and
lived large.”
ANSWER: Admitted.
8. “Rio enjoyed sketching, art, reading, video games, riding her bike and going
camping with her family. She would make you laugh with her smart wit and sarcasm. She loved
spending time with her BFF Lilli and her family. She will always be remembered for her
infectious laugh.” www.stemmlawsonpeterson.com/obituary/Rio-Allred
ANSWER: Defendants admit that the quoted statements in paragraph 8 of the
Complaint are excerpts from Rio’s obituary published at
www.stemmlawsonpeterson.com/obituary/Rio-Allred.
9. When local media outlets asked Niki to describe Rio: “She was the light to
everybody who ever met her. She was funny. She was sarcastic and very witty.”
https://www.wndu.com/2022/03/17/candlelight-vigil-12-year-old-north-side-middle-school-
student/?msclkid=a9f28d13aa3c11ecbb5072ce0055fd34
Complaint are assertions attributed to Plaintiff published at
https://www.wndu.com/2022/03/17/candlelight-vigil-12-year-old-north-side-middle-school-
student/?msclkid=a9f28d13aa3c11ecbb5072ce0055fd34.
10. Niki’s sister, Vanessa Cannady, described “Rio [as] the most beautiful, loving,
caring, smart, sarcastic, charismatic young...yet so wise beyond her years young lady. Rio loved
her family, she loved art, reading, band, camping, kayaking, playing video games.”
https://www.gofundme.com/f/rios-memorial-fund?utm_campaign=p_cp+share-
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sheet&utm_medium=copy_link_all&utm_source=customer
Complaint are assertions attributed to Plaintiff’s sister, Vanessa Cannady, published at
https://www.gofundme.com/f/rios-memorial-fund?utm_campaign=p_cp+share-
sheet&utm_medium=copy_link_all&utm_source=customer.
11. When she was in 4th grade, Rio met a female classmate called L.D. The two
shared common interests and became best friends.
ANSWER: Defendants are without knowledge or information sufficient to form a
belief regarding the truth of the allegations in paragraph 11 of the Complaint and, therefore, deny
the same.
12. Unlike most girls her age, Rio had never shown any interest in boys or starting a
family when she got older. One day in the summer of 2019 (when she was 10 years old and
going into 5th grade), Rio disclosed to Niki that she was a lesbian. She and L.D. became
romantic partners.
the same.
13. Afraid of being subjected to the usual social judgments and homophobia which
accompany “coming out,” she only shared this revelation with Niki and a handful of her closest
friends; inevitably, however, word of Rio’s secret spread through the school.
the same.
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14. Their parents were aware of the girls’ relationship and soon pretty much everyone
at school knew that Rio and L.D. were partners.
the same.
15. Aside from being openly close with each other, the girls belonged to the GEM
club, which is for students who identify as lesbian, gay, bisexual or transgender (LGBT). Marissa
Batt, a social studies teacher employed by the District, was the faculty sponsor of the GEM club.
ANSWER: Defendants admit that Rio belonged to the GEM club, which is for
students who are a part of or are supporters of the lesbian, gay, bisexual or transgender (LGBT+)
community, and that Marissa Batt, a social studies teacher employed by the District, was the
faculty sponsor of the GEM club. Defendants are without knowledge or information sufficient to
form a belief regarding the truth of the remaining allegations in paragraph 15 of the Complaint
and, therefore, deny the same.
16. In or around December 2020, when Rio was in the 6th grade at Pinewood, she
started losing her hair. At first, Niki noticed a bald spot, but soon Rio’s hair started falling out by
the handful. At that time, the District was still utilizing an “eLearning” method of instruction and
Rio’s classes were online, so she usually stayed home and only went to school occasionally for
standardized assessments and band practice. Since Rio was taking classes at home, she was not
around large groups of students on a daily basis. Instead, she hung around with a small group of
friends, who were used to seeing her and became accustomed to watching her gradual hair loss
as it happened.
ANSWER: Defendants admit that in or around December 2020, the District was
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operating on a hybrid model of instruction where students could attend a fully virtual program or
an in-person/eLearning program. Defendants are without knowledge or information sufficient to
17. In or around March of 2021, Rio was diagnosed with alopecia areata, an
autoimmune condition which causes hair loss. It affects about seven million Americans and there
is no known cure. https://www.naaf.org/alopecia-areata.
ANSWER: Defendants admit, based on information and belief, that Rio was
diagnosed with alopecia areata. Defendants are without knowledge or information sufficient to
18. In a desperate attempt to save her shedding hair, Rio tried creams and injections.
Nothing worked.
the same.
19. Even as her hair fell out and she developed patchy bald spots, Rio displayed
incredible bravery and strength for a 12-year old girl.
belief regarding the truth of the remaining allegations in paragraph 19 of the Complaint and,
therefore, deny the same.
20. After months of “virtual” learning, in the fall of 2021, District schools finally
reopened for in-person instruction.
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ANSWER: Defendants admit that in the fall of 2021, the District eliminated the
hybrid model and returned to a full time in-person program. Defendants deny the remaining
allegations in paragraph 20 of the Complaint.
21. When school started, Rio tried concealing her head with bandanas and hats until
eventually she had her parents shave her head when school started in the fall of 2021. Her
grandmother bought her a beautiful brown wig which she loved.
ANSWER: Defendants admit that, at times, Rio wore bandanas and hats. Defendants
are without knowledge or information sufficient to form a belief regarding the truth of the
22. On or around August 12, 2021, Rio started 7th grade at North Side. She was self-
conscious and nervous, but excited about her new wig, eager to be back in school with her
friends and play in the band. With the support of her loving family, she bravely entered the halls
of North Side to begin 7th grade.
ANSWER: Defendants admit that on or around August 12, 2021, Rio started 7th grade
at North Side. Defendants are without knowledge or information sufficient to form a belief
regarding the truth of the remaining allegations in paragraph 22 of the Complaint and, therefore,
deny the same.
23. Rio quickly realized that her peers were less accepting of a 12-year old girl with
no hair than her family, and she soon discovered the truth to the adage that there is no crueler
place than the playground.
the same.
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24. Within about two weeks after school started, students began harassing Rio
because of her hair loss and sexual orientation—which literally proved to be a lethal
combination.
the same. Defendants deny that harassment based on Rio’s hair loss and sexual orientation was
ever reported to District administrators.
25. People started calling her “Mr. Clean®,” after the iconic bald male character
conceived by Procter & Gamble in 1958 as the mascot for its brand of household cleaning
products. Clad in all white and sporting a gold earring, he is described as a “muscular, tanned,
bald man.” https://en.wikipedia.org/wiki/Mr._Clean. His gleaming dome is a familiar sight to
Americans; he even has his own Facebook page (www.facebook.com/mrclean) and Twitter
account (www.twitter.com/realmrclean).
ANSWER: Defendants admit that Mr. Clean® is a bald male character conceived by
Procter & Gamble as the mascot for its brand of household cleaning products and that the
websites cited in paragraph 25 describe and/or reference the character. Defendants admit that Rio
was reportedly called Mr. Clean. Defendants are without knowledge or information sufficient to
26. Not to be outdone, some students came up with the nickname “Caillou,” the main
character in an animated Canadian children’s television series about an inquisitive four-year-old
boy “popularized without a single hair on his head.” www.chouette-publishing.com/caillou
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the same.
27. Other students called Rio names that stung a little harder (e.g., “naked mole rat”
and “bug-eyed alien”), but the common denominator was that they targeted her because she did
not look like a “typical” girl.
the same.
28. Rio’s rough start to 7th grade was only the beginning. Her numerous antagonists
continued harassing her, spewing their hateful venom on practically a daily basis for the next
seven months. One especially sadistic female student in particular, M.C., targeted Rio for
relentless verbal and psychological abuse. She regularly taunted and ridiculed Rio, making cruel
comments on her unusual appearance.
the same. Defendants specifically deny the alleged harassment was reported to District
administrators.
29. At the end of August 2021, M.C. ripped off Rio’s wig in front of the class,
exposing her head for all to see. A teacher was present when this occurred.
ANSWER: Defendants admit that in February 2022, Plaintiff reported to a North Side
teacher that, at the beginning of the 2021-2022 year, M.C. ripped off Rio’s wig. Defendants are
without knowledge or information sufficient to form a belief regarding the truth of the remaining
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30. It is unknown what disciplinary action, if any, the District took against M.C. for
the wig incident or other abuse which she regularly heaped upon Rio at school.
ANSWER: Denied.
31. This was just the first of several wig-pulling incidents; after the initial incident
with M.C. in August, other students pulled off Rio’s wig at school.
the same. Defendants specifically deny that any such incidents were reported to District
administrators.
32. On or about September 2, 2021, Jennifer Tashijan, a counselor employed by the
District, received a report from Sandra Carnall, a band teacher employed by the District, that a
female student called I.K. had smacked Rio, kicked her out of her chair and choked her.
ANSWER: Defendants admit that on or about September 2, 2021, Jennifer Tashijan, a
counselor employed by the District, received a report from Sandra Carnall, a band teacher
employed by the District, that Plaintiff reported a female student named I.K. smacked Rio,
pushed her out of her chair, and started choking her. Defendants are without knowledge or
information sufficient to form a belief regarding the truth of the remaining allegations in
paragraph 32 of the Complaint and, therefore, deny the same.
33. Rio told Niki about the attack, which made her furious. Niki discussed the
incident with Tashijan, who assured Niki that she would have I.K. come to her office the next
day to discuss what happened. Tashijan also told Niki that when I.K. came to her office, she was
going to make I.K. call her mother in Tashijan’s presence; however, Tashijan subsequently told
Niki that she had not made I.K. call her mother because she believed that doing so was
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unnecessary. Instead, Tashijan said that she had simply spoken with I.K. about the incident.
ANSWER: Defendants admit that Tashijan discussed the incident with Plaintiff after
speaking with Rio and I.K. and asked Plaintiff to notify her if there were additional incidents.
Defendants are without knowledge or information sufficient to form a belief as to the truth of the
allegations regarding Plaintiff’s state of mind and, therefore, deny the same. Defendants deny the
34. It is unknown what disciplinary action (if any) the District took against I.K. as a
result of her physical assault of Rio, and Tashijan would later admit that she did not report the
incident to administration.
ANSWER: Denied.
35. Another incident occurred after a band concert which Rio was unable to attend in
October 2021, when a male student told her that she should kill herself.
the same. Defendants deny that any such incident was reported to District administrators.
36. Around the middle of October 2021, another female student, L.K., physically
assaulted Rio in the girls’ restroom at school, pushing her into the wall then slamming her head
back and forth against it1.
the same. Defendants deny that any such incident was reported to District administrators.
37. Following a brief respite from her tormentors over Christmas break (December
1
Which constitutes Battery, a criminal offense under Indiana law.
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2021-January 2022), the harassment of Rio continued in the spring semester.
belief regarding the truth of the vague allegations in paragraph 37 of the Complaint and,
38. On or about January 27, 2022, Rio sent Tashijan an email reporting that a male
student, D.S., had been calling her “Mr. Clean,” tripping her on the stairs and smacking her on
the head.
ANSWER: Admitted.
39. Jacob Robaska, who was employed by the District as Assistant Band Director,
had witnessed D.S. call Rio “Mr. Clean” during his class. Robaska had also heard reports that
students were pulling off Rio’s wig at school.
ANSWER: Defendants admit that Jacob Robaska, who was employed by the District
as Assistant Band Director, witnessed D.S. call Rio “Mr. Clean” once during his class.
Defendants deny the remaining allegations contained in paragraph 39 of the Complaint.
40. One of Rio’s worst antagonists at school was a male student called A.A., who
took every opportunity he had to heap verbal abuse on the defenseless Rio. School counselors
employed by the District (including Tashijan) were well aware of A.A.’s history of harassing
students and Rio in particular, yet failed to take appropriate measures to stop him.
ANSWER: Defendants deny school counselors employed by the District (including
Tashijan) were aware of A.A.’s alleged history of harassing students, including Rio, or failed to
take appropriate action. Defendants are without knowledge or information sufficient to form a
belief regarding the truth of the remaining allegations in paragraph 40 of the Complaint and,
therefore, deny the same. Defendants specifically deny that any such harassment was reported to
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District administrators.
41. Another male student, C.M., used to hit Rio with his trombone case on a regular
basis.
the same. Defendants specifically deny that any such incidents were reported to District
administrators.
42. Rio’s band teacher, Sandra Carnall, knew that C.M. was assaulting Rio and had
asked him to stop, but he ignored her.
ANSWER: Denied.
43. Carnall knew that Rio was being harassed at school and had been in
communication with Niki regarding the situation as early as September 2021.
ANSWER: Defendants admit that Carnall communicated with Plaintiff via text
message in September 2021 and again in February 2022 regarding Plaintiff’s concerns about Rio
and treatment by her peers. Defendants deny the remaining allegations contained in paragraph 43
of the Complaint.
44. On or about February 22, 2022, Rio was in the hallway at school when a student
snuck up on her and smacked her in the head. Completely taken off guard, Rio was not able to
identify her attacker.
the same. Defendants specifically deny that any such incident was reported to District
administrators.
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45. That same day, Claudia Burmeister, a social worker employed by the District, was
approached by a student, N.P., who expressed concerns about Rio being bullied. Burmeister had
Rio come to her office, where she confirmed what N.P. had reported and identified one of the
perpetrators as B.H.
ANSWER: Admitted.
46. Rio’s 7th grade science teacher, Robert Teitsma, admitted that he had heard that
Rio “had been identifying as a boy” and that L.D. was her girlfriend. Teitsma also knew that
“Rio had been getting grief about identifying as a boy and having a girlfriend as a girl.” Upon
information and belief, Teitsma never reported this information to Douglas Thorne, the District’s
Title IX Coordinator, or other adminstrators [sic].
ANSWER: Defendants admit that Robert Teitsma was Rio’s seventh grade science
teacher, that Douglas Thorne is the District’s Title IX Coordinator, and that Teitsma never
reported information regarding Rio to Thorne or other District administrators. Defendants are
without knowledge or information sufficient to form a belief regarding the truth of the remaining
47. On or about February 23, 2022 (the day after the hallway assault), Rio and L.D.
were attending a drama club activity in the school cafeteria when a female student called A.H.
took L.D.’s iPad from her and drew a penis as the background on the display.
ANSWER: Admitted.
48. L.D. told her mother about the incident with her iPad and Rio, L.D. and/or L.D.’s
mother also reported the incident to a North Side Principal.
ANSWER: Defendants admit that on March 21, 2022, L.D.’s mother reported the
incident to the North Side Principal. Defendants are without knowledge or information sufficient
15
to form a belief regarding the truth of the remaining allegations in paragraph 48 of the Complaint
49. Upon information and belief, the Principal did not report the iPad incident to
Thorne, the District’s Title IX Coordinator. However, the incident was captured on a school
surveillance camera, and L.D.’s mother saw a video recording of it.
ANSWER: Admitted.
50. When she was in 6th grade at Pinewood (2020-2021), Rio had earned good grades
in school, mostly As and Bs. By the time she was in 7th grade at North Side, she was getting Cs,
Ds and Fs.
ANSWER: Defendants admit that when Rio was in 6th grade at Pinewood (2020-2021)
she earned mostly As and Bs and that when she was in 7th grade at North Side, she earned some
Cs, Ds, and Fs. Defendants deny the remaining allegations in paragraph 50 of the Complaint.
51. By the spring of 2022, Niki was beyond scared and frustrated; she was terrified,
desperate and seething with anger. As far as she could tell, the District had done nothing over the
preceding seven months to help Rio. If school authorities had done anything at all to address the
situation, whatever they did was not working because the harassment continued. All indications
were that the District was not taking it seriously and simply allowing it to continue.
belief as to the truth of the allegations in paragraph 51 regarding Plaintiff’s state of mind and,
therefore, deny the same. Defendants deny the District did nothing to help Rio, that it allowed
the alleged harassment against Rio to continue, and the remaining allegations in paragraph 51 of
the Complaint.
52. Finally, Niki had had enough. She could not keep sending Rio to school every day
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knowing that she was putting her in such a hostile, cruel, frightening and dangerous environment
while District employees stood there and let it happen. She requested a meeting with school
personnel to discuss the situation.2
belief as to the truth of the allegations in paragraph 52 regarding Plaintiff’s state of mind and,
therefore, deny the same. Defendants deny Plaintiff requested a meeting with school personnel to
discuss the situation and the remaining allegations in paragraph 52 of the Complaint.
53. On or about March 2, 2022, Niki, Rio, Rio’s sister, biological father and
stepmother met with the school counselor (Tashijan) and social worker (Burmeister).
ANSWER: Admitted.
54. Rio stated that she was still being bullied and named the 4-5 students who were
the worst offenders. Among the students she identified was D.S., whom Tashijan had spoken to
on or around January 28, 2022, about bullying Rio but whom Tashijan said was “not a bad kid.”
ANSWER: Admitted.
55. Rio and her family recounted the relentless verbal and physical abuse which Rio
had been enduring at school on a daily basis since August. Niki expressed her fear, frustration
and anger, but did her best to remain calm and respectful since she knew that if she lost her
temper, school staff would not take her seriously.
ANSWER: Defendants admit Rio’s parents expressed concerns about bullying of Rio.
Defendants are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 55 regarding Plaintiff’s state of mind and, therefore, deny the same and
the remaining allegations in paragraph 55 of the Complaint.
2
Burmeister would later take credit, claiming that she had called Niki to schedule a meeting.
17
56. During this meeting, Niki provided Tashijan and Burmeister with the names of
several students who had been harassing Rio, along with details of their specific acts of physical
and verbal abuse.
ANSWER: Defendants admit that, during this meeting, Plaintiff provided Tashijan
and Burmeister with the names of several students who had been mean to Rio. Defendants deny
the remaining allegations in paragraph 56 of the Complaint.
57. Niki shared a story which she had read about a 12-year old3 boy in Utah who had
just committed suicide after being bullied at school
(https://www.sltrib.com/news/education/2022/02/25/utah-family-mourns-year/) and told them
she was terrified about the possibility of Rio doing the same. She pleaded with Tashijan and
Burmeister for help.
ANSWER: Denied.
58. To help them get to the root of the problem, Niki gave Tashijan and Burmeister a
list of names of the worst offenders and implored them to speak with their parents. Tashijan and
Burmeister assured the family that they would contact the perpetrators’ parents and get back to
them, but Niki never heard from them again.
ANSWER: Defendants admit that Plaintiff gave Tahijan and Burmeister names of
several students who had been mean to Rio, that Tashijan and Burmeister agreed to contact the
students’ parents, and that Plaintiff did not hear from Tashijan and Burmeister again. Defendants
deny the remaining allegations contained in paragraph 58 of the Complaint.
59. Tashijan and Burmeister’s failure to get back to Niki after their March 2nd
meeting upset her, but it was entirely consistent with the apathy which the District had shown
3
Rio’s age.
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towards Rio’s plight over the preceding seven months. Burmeister would later claim that she had
planned to get back to Rio’s family after the March 2nd meeting, but that she did not have a
chance to do so before Rio’s death.
ANSWER: Defendants admit Burmeister planned to get back to Plaintiff after the
March 2 meeting, but that she did not have a chance to do so before Rio’s death. Defendants are
without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 59 regarding Plaintiff’s state of mind and, therefore, deny the same and the remaining
60. Mary Wisniewski, Assistant Principal at North Side, would later claim that she
was unaware that Rio was being bullied until after she died when Tashijan and Burmeister
informed her about the meeting which they had with the family on March 2nd.
ANSWER: Defendants admit that Mary Wisniewski is Assistant Principal at North
Side and that she told law enforcement that students had not notified her that Rio was being
bullied until after Rio’s death. Defendants deny the remaining allegations in paragraph 60 of the
Complaint.
61. A boy who attended school and was in band with Rio also suffered alopecia and
lost all his hair, but her experience stood in stark contrast to his: the boy was popular and well-
liked. Unlike Rio, he was not subjected to the same kind of harassment—if any—as she, who
was harassed by other students at school almost daily from August 2021 until March of 2022.
belief regarding the truth of the allegations in paragraph 61 and, therefore, deny the same.
62. Eventually, by early spring the pain of the of [sic] constant harassment, profanity,
name-calling, ridicule, teasing, hateful comments and physical abuse which young Rio had
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endured for months became more than she could bear. Around 6:54 a.m. March 14, 2022, Niki’s
worst nightmare came true: she called for Rio to get ready for school, but she did not respond.
When Niki went into her room to check on her, she discovered Rio’s lifeless body hanging from
the rail of her bunk bed.
ANSWER: Defendants admit that Rio’s lifeless body was found on March 14, 2022.
Defendants are without knowledge or information sufficient to form a belief regarding the truth
of the remaining allegations in paragraph 62 and, therefore, deny the same.
63. Word of Rio’s death spread quickly through the community and the people of
Elkhart rallied to support her family, who were overwhelmed by the outpouring of love.
Hundreds of people—many complete strangers—sent the family their condolences and included
them in their prayers. Students held a candlelight vigil to honor her memory.
ANSWER: Defendants admit that word of Rio’s death spread quickly, that the people
of Elkhart rallied to support her family, and that students held a candlelight vigil to honor her
memory. Defendants are without knowledge or information sufficient to form a belief regarding
the truth of the remaining allegations in paragraph 63 and, therefore, deny the same.
64. Local media outlets covered Rio’s heartbreaking story, and soon other students
and their parents came forward to share their personal experiences with bullying in the Elkhart
school system.
ANSWER: Admitted.
65. It turns out that Rio’s experience was not unique, and illustrates a systemic
problem in Elkhart schools. Kids were terrified of going to school. Parents were afraid to send
them. A recurring theme in their stories was that even when they reported bullying to teachers,
counselors and administrators, the District failed to take appropriate action to stop it or support
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the victims.
ANSWER: Denied.
66. The District’s deliberate indifference to student-on-student harassment in its
schools has fostered a culture which tolerates—even encourages—that type of behavior,
resulting in a hostile educational environment.
ANSWER: Denied.
67. Eight days after Rio took her own life, on or about March 22, 2022, the District’s
Board held a public meeting. According to a published summary of that meeting, the Board
“heard seven (7) audience members voice concerns of student bullying across the district and the
lack of action from the administration to effectively address complaints of bullying.”
ANSWER: Admitted.
68. The minutes of the meeting reflect that “Superintendent Thalheimer recognized
the impact [which] a student death has on all members of the school community. In response to
those asking what is being done, Dr. Thalheimer reported [that] bullying protocols were a large
part of the previous week’s leadership team meeting....[T]he district is looking to add an
additional layer of risk assessment for those students who report being bullied. Dr. Thalheimer
reported [that] on March 23 there will be a principal meeting to review bullying investigation
processes and to share successful interventions for bullying. The district is also looking at how to
better spell out and teach expectations for behavior, including bullying...Dr. Thalheimer
reminded families that if a building is not responsive to a bullying report or a parent/guardian
feels the investigation into bullying was not conducted satisfactorily, then they should report this
to Student Services or the Superintendent’s Office.”
ANSWER: Admitted.
21
69. On or about April 12, 2022—about five weeks after Niki’s meeting with Tashijan
and Burmeister and a month after Rio’s suicide—the District’s Board held a public meeting to
discuss harassment in its schools. According to the published summary of that meeting, nine
members of the public expressed their “concerns of bullying in [the District] and what the
District is doing to stop it.”
ANSWER: Defendants admit that the District’s Board held a public meeting on April
12, 2022, which was about five weeks after Plaintiff’s meeting with Tashijan and Burmeister and
a month after Rio’s suicide, and that the published summary of that meeting stated nine audience
members spoke about “concerns of bullying in [the District] and what the District is doing to
stop it.” Defendants deny the remaining allegations in paragraph 69 of the Complaint.
70. Superintendent Thalheimer said that the District’s “liability insurance carrier,
Liberty Mutual, has had their Risk Control Services do a ‘high-level overview’ and shared that
they ‘found many of the components of [our] bullying prevention program do align with the best
practices identified by multiple national resources.’ Their suggestion is for us to audit various
aspects of our processes and conduct student, parent, and staff surveys of what can be done to be
more effective and consistent. Overall, findings show ECS needs to make sure anti-bullying
efforts are ongoing because there is no end date for bullying prevention. While students are
talked to about bullying at the beginning of the school year and provided information about
reporting bullying...further steps need to be taken to ensure we maintain a ‘see something/say
something culture’ all year round.”
ANSWER: Defendants admit that the quoted assertions in paragraph 70 are excerpts
from the written summary of the April 12, 2022, meeting of the District’s Board. Defendants
deny the remaining allegations in paragraph 70 of the Complaint.
22
71. Thalheimer then listed several steps that the District would be taking, including
training staff and students on bullying prevention, reporting and investigation. He told the Board
that the District was planning a parent event “that will define bullying and how the community
can collaborate to reduce its occurrence.”
ANSWER: Admitted.
72. At its April 26th public meeting, the Board “heard three audience members voice
their concerns about bullying and expressed an interest in working with [the District] to be a part
of the solution.”
ANSWER: Admitted.
73. Assistant Superintendent Sarita Stevens announced that the District would be
holding an Anti-Bullying Parent Assembly on May 12th, 2022.
ANSWER: Admitted.
74. On or about May 2, 2022, the District received Niki’s Notice of Tort Claim.
ANSWER: Denied.
75. At the Board’s May 10, 2022, public meeting, a member of the audience
expressed “concerns about bullying and expressed an interest in working with [the District] to be
a part of the solution.”
ANSWER: Admitted.
76. On May 12, 2022, the District held an anti-bullying forum for school
administrators and parents. One of the messages which parents took away was administrators
telling them that they needed to teach their children “how to cope.”
ANSWER: Defendants admit that on May 12, 2022, the District held an anti-bullying
forum for school administrators and parents. Defendants are without knowledge or information
23
sufficient to form a belief regarding the truth of the remaining allegations in paragraph 76 and,
77. The District held a regular Board meeting on May 24, 2022, followed by an
executive session.
ANSWER: Admitted.
78. If one good thing came from Rio’s death, it exposed a serious problem in the
Elkhart school system. Parents spoke out at school board meetings. In a powerful message to
District administrators, North Side students staged a walkout to protest their failure to address
the bullying epidemic in Elkhart schools.
ANSWER: Defendants admit that following Rio’s death, individuals spoke at school
board meetings and that North Side students staged a walkout to protest the District’s handling of
bullying. Defendants deny the remaining allegations in paragraph 78 of the Complaint.
79. Superintendent Steve Thalheimer publicly acknowledged that bullying in schools
has gotten worse over the past couple of years: “Generally, what we have seen is that because of
students’ higher levels of anxiety, depression, suicidal ideation, students are just in a more
vulnerable state....”
ANSWER: Admitted.
80. Assistant Superintendent Sarita Stevens publicly stated that each school in the
District has staff who are tasked with investigating reports of bullying and determining whether
they meet the definition of “bullying” under Indiana law. According to Stevens, most of the
incidents reported are considered student “conflicts” by school administrators—not harassment
or bullying.
ANSWER: Admitted.
24
81. This may explain why there is a widespread perception among Elkhart students
and their parents that the District does not take bullying seriously (as demonstrated by its
cavalier, “kids will be kids” attitude), and at least one brave teacher was quoted as saying “we’re
not doing enough to protect these people from getting bullied.”
ANSWER: Defendants admit that some students, parents, and staff believe more can
be done to protect students from bullying. Defendants deny the remaining allegations in
paragraph 81 of the Complaint.
82. While District administrators may believe that using a euphemism to describe
students’ behavior relieves them of their legal obligations under Federal and State law, calling it
“conflict” does not change the fundamental nature of the conduct (namely, harassment) or its
impact on the victims, including the creation of a hostile educational environment.
ANSWER: Denied.
83. Neither the District’s anti-harassment policy (Policy 2266) nor its bullying
prevention policy (Policy 5517.01) defines the term “conflict.”
ANSWER: Admitted.
84. However, the District’s own written policies prohibit sex discrimination, sexual
harassment and bullying in its schools.
ANSWER: Admitted.
85. At all times relevant, the District had in effect a statement of non-discrimination
which provided, in part: “Elkhart Community Schools does not discriminate on the basis of...sex
(including transgender status, sexual orientation and gender identity)...which are classes
protected by Federal and/or State law (collectively, “Protected Classes”) occurring in the
Corporation’s educational opportunities, programs, and/or activities....”
25
ANSWER: Admitted.
86. At all times relevant, the District had in effect a policy titled “Title IX Sexual
Harassment Policy” (Policy 2266) prohibiting discrimination on the basis of sex: “The Board of
School Trustees of Elkhart Community Schools noting the adverse effects discrimination and
harassment can have on student academic progress, social relationship, and/or personal sense of
self-worth...does not discriminate on the basis of sex in its educational programs and
activities...All forms of sex-based discrimination, including sexual harassment, are prohibited
pursuant to Board Policies 2260 and 3122ACS.”
ANSWER: Admitted.
87. Section B of District Policy 2266 provides that “The Superintendent shall have
overall responsibility for implementing this Policy....”
ANSWER: Defendants admit that the quoted statement in paragraph 87 is an excerpt
from Section B District Policy 2266.
88. Section B(2)(h) of the District’s policy defines “sexual harassment” to include
“conduct on the basis of sex (including, without limitation, gender, sexual orientation, and/or
gender identity), occurring in a school system education program or activity,” if it meets one or
more criteria listed. It then gives examples of prohibited behavior which include “sexually
suggestive remarks or jokes; Verbal harassment or abuse; Displaying or distributing sexually
suggestive pictures, in whatever form (e.g., drawings, photographs, videos, irrespective of
format); Harassing or sexually suggestive or offensive messages written or electronic” and
“Teasing or name-calling related to sexual characteristics or the belief or perception an
individual is not conforming to expected gender roles or conduct.”
ANSWER: Defendants admit that Section B(2)(h) of the District’s policy defines
26
“sexual harassment” to include “conduct on the basis of sex (including, without limitation,
gender, sexual orientation, and/or gender identity), occurring in a school system education
program or activity,” if it meets one or more criteria listed. Defendants deny that the examples of
prohibited behavior quoted in paragraph 88 of the Complaint are excerpts from the District’s
current policy.
89. The District’s policy states that “Sexual harassment may be directed against a
particular person...whether of the opposite sex or the same sex.”
from the District’s policy.
90. The harassment which Rio was experiencing at school falls squarely within the
District’s own definition of “sexual harassment.”
ANSWER: Denied.
91. The same District policy designates Doug Thorne, General Counsel for the
District, as the District’s Title IX Coordinator, whom the policy directs “shall respond promptly
to all general reports as well as formal complaints of sexual harassment.”
ANSWER: Defendant admits that the policy designates the District Counsel/Chief of
Staff as the District’s Title IX Coordinator and that the policy states the “Title IX Coordinator
shall respond promptly to all general reports as well as formal complaints of sexual harassment.”
Defendant denies the remaining allegations in paragraph 91 of the Complaint.
92. In addition to promptly responding to all reports (formal and informal) of sexual
harassment, the District’s Title IX Coordinator (Thorne) is responsible for:
• meeting with a complainant, and informing the parent/guardian once the
Title IX Coordinator becomes aware of allegations of conduct which could
27
constitute sexual harassment as defined in this Policy;
• identification and implementation of supportive measures;
• signing or receiving formal complaints of sexual harassment;
• engaging with the parents/guardians of parties to any formal complaint of
sexual harassment;
• coordinating with district and school-level personnel to facilitate and
assure implementation of investigations, and remedies, and helping to
assure the District otherwise meets its obligations associated with reports
and complaints of sexual harassment;
• coordinating with the Superintendent with respect to assignment of
persons to fulfill the District’s obligations, both general and case specific,
relative to this Policy (e.g., investigator, decision-makers, etc.; this may
involve the retention of third party personnel.);
• coordinating with district and school-level personnel to assure appropriate
training and professional development of employees and others in
accordance with §B-4 [see below] of this Policy; and
• helping to assure appropriate systems are identified and maintained to
centralize sexual harassment records and data.
ANSWER: Defendants admit the statements in paragraph 92 of the Complaint are
excerpts from the District’s policy.
93. Section B(4) of the District’s policy provides:
All ECS employees shall receive regular training relative to mandatory reporting
obligations, and any other responsibilities they may have relative to this Policy.
Title IX Coordinators, investigators, decision-makers, and any person who
facilitates an informal resolution process, must receive training on the definition
28
of sexual harassment, this Policy, the scope of the District’s education program or
activity, and how to conduct an investigation (including the requirements of the
reporting and the Title IX Grievance Process, including hearings, appeals, and
information resolution processes). The training must also include avoiding
prejudgment of the facts, conflicts of interest, and bias.
Decision-makers must also receive training on issues of relevance of questions

and evidence, including when questions about the complainant’s sexual
predisposition or prior sexual behavior are not relevant. Investigators must receive
training on issues of relevance to create an investigative report that fairly
summarizes relevant evidence.
ANSWER: Defendants admit that the statements in paragraph 93 of the Complaint are
excerpts from Section B(4) of the District’s policy.
94. Section B(10)(a) of the District’s policy (emphasis original) provides:
Any person may report sexual harassment, whether relating to her/himself or

another person. However, if any District employee – other than the employee
harasser, or the Title IX Coordinator – receives information of conduct
which may constitute sexual harassment under this Policy, s/he shall, without
delay, inform the Title IX Coordinator of the alleged sexual harassment.
Failure to report will subject the employee to discipline up to and including
dismissal.
A report of sexual harassment may be made at any time, in person, by mail, by

telephone, electronic mail, or by any other means that results in the Title IX
Coordinator receiving the person’s verbal or written report. Additionally, while
the District strongly encourages reports of sexual harassment to be made directly
to the Title IX Coordinator, the report may be made to any District staff member,
including, for instance, a counselor, teacher, or principal.
excerpts from Section B(10)(a) of the District’s policy.
95. Under section B(10)(b) of the District’s policy:
The district will promptly respond when there is actual knowledge of sexual
harassment, even if a formal complaint has not been filed. The district shall treat
complainants and respondents equitably by providing supportive measures to the
complainant and by following the Title IX Grievance Process prior to imposing
any disciplinary sanctions or other actions that are not supportive measures
against a respondent. The Title IX Coordinator is responsible for coordinating the
effective implementation of supportive measures.
29
As soon as reasonably possible after receiving a report of alleged sexual

harassment from another ECS employee or after receiving a report directly
through any means, the Title IX Coordinator shall contact the complainant to:
• discuss the availability of and offer supportive measures;
• consider the complainant’s wishes with respect to supportive measures;
• inform the complainant of the availability of supportive measures with or

without the filing of a formal complaint; and
• explain to the complainant the process for filing a formal complaint.
excerpts from Section B(10)(b) of the District’s policy.
96. The District’s policy sets forth procedures for taking disciplinary action against
the alleged perpetrator(s) of harassment, but section B(10)(e) allows it to summarily remove
students who pose an immediate threat:
At any point after receiving a report or formal complaint of sexual harassment, the
Title IX Coordinator (or other ECS official charged with a specific function under
this Policy or the Title IX Process: e.g., investigator, decision-maker, etc.) may
request the Superintendent to direct an individualized safety and risk analysis be
performed to determine whether a...student...is an immediate threat to the physical
health or safety of any person. In the event the safety and risk analysis determines
the respondent student does present an immediate threat to the physical health and
safety of any person, the District may remove that student.... Such emergency
removal shall not be disciplinary. However, the District must provide the
respondent with notice and an opportunity to challenge the decision immediately
following the removal, and shall continue to offer educational programming until
a final determination is made pursuant to the Title IX Grievance Process.
excerpts from Section B(10)(e) of the District’s policy.
97. Upon information and belief, either (a) Thorne failed to follow one or more of the
District’s Title IX policies in response to multiple reports that Rio was being harassed at school,
or (b) District employees failed to inform Thorne about conduct which may constitute sexual
30
harassment under the District’s policy.
ANSWER: Denied.
98. In any event, neither Tashijan nor Burmeister provided Rio’s parents with
Thorne’s contact information so that they could speak with him about filing a Title IX grievance,
request the provision of supportive measures for Rio, or request an investigation.
ANSWER: Admitted.
99. Thorne did not attend the meeting which Rio’s family had with Tashijan and
Burmeister on March 2, 2022.
ANSWER: Admitted.
100. Upon information and belief, from August 2021 until Rio’s death in March of
2022, Thorne conducted no investigation into the reports that she was being harassed and
physically assaulted at school. It was not until after Rio’s suicide—when Elkhart Police
Department officers requested his cooperation—that Thorne coordinated staff interviews with
police and asked the District’s information technology (IT) department to retrieve electronic mail
and text messages which had been sent and received by Rio on her school-issued device(s).
ANSWER: Defendants admit that after Rio’s suicide, Thorne coordinated staff
interviews with police and asked the District’s information technology (IT) department to
retrieve electronic mail and text messages which had been sent and received by Rio on her
school-issued device(s). Defendants deny receiving any reports that Rio was harassed or
physically assaulted prior to her death that would necessitate the involvement of the District’s
Title IX Coordinator. Defendants deny the remaining allegations in paragraph 100 of the
Complaint.
101. In addition to the foregoing written sexual harassment policies, at all times
31
relevant the District had in effect a written bullying prevention policy (Policy 5517.01) which
defines “bullying” as “intentional behaviors involving unwanted and unwelcomed actions which
are severe, persistent, or pervasive.”
ANSWER: Admitted.
102. Under the District’s written policy, “Bullying includes unwanted, often repeated,
acts or gestures, including verbal or written communications or images transmitted in any
manner (including digitally or electronically), physical acts committed, aggression, or any other
behaviors which are committed by a student or group of students against another student which
have an effect of harassing, ridiculing, humiliating, intimidating or harming the targeted student
and creating for the targeted student, an objectively hostile school environment which:
• places the targeted student in reasonable fear of harm to the

targeted student’s person or property;
• has a substantially detrimental effect on the targeted student’s
physical or mental health;
• has the effect of substantially interfering with the targeted
student’s academic performance; or
• has the effect of substantially interfering with the targeted
student’s ability to participate in or benefit from the services,
activities, and privileges provided by the school.”
ANSWER: Defendants admit that the statements in paragraph 102 of the Complaint
are excerpts from the District’s policy.
103. The District’s definition of “bullying” is similar to the statutory definition of that
term in the Indiana Education Code. See IC § 20-33-8-0.2.
ANSWER: Admitted.
104. The conduct which Rio experienced at North Side falls squarely within the
District’s own definition of “bullying.”
ANSWER: Defendants admit that District personnel determined that Rio experienced
32
conduct amounting to bullying within the District’s definition. Defendants deny the remaining
105. Superintendents Thalheimer and Stevens had final responsibility for enforcing the
District’s sexual harassment and bullying policies and training District employees on same.
ANSWER: Denied.
106. Title IX Coordinator Thorne was responsible for implementing the District’s
sexual harassment policy and training District employees on same.
ANSWER: Denied.
107. The building-level administrators with authority and primary disciplinary
responsibility for enforcing the District’s sexual harassment and bullying policies include North
Side Principals Sara Jackowiak and Mary Wisniewski.
ANSWER: Admitted.
108. From the beginning of school in August 2021 until Rio’s suicide in March of
2022, neither Jackowiak nor Wisniewski had ever met or communicated with Niki regarding
what Rio was experiencing at North Side. In fact, Wisniewski denied having any knowledge that
Rio was being harassed at school until after her death.
ANSWER: Defendants admit that from the beginning of school in August 2021 until
Rio’s suicide in March of 2022, neither Jackowiak nor Wisniewski ever met or communicated
with Plaintiff regarding Rio’s experiences at North Side. Defendants deny the remaining
109. At all times relevant, the District utilized a program called Sprigeo.com for
students and parents to anonymously report bullying and threats. Wisniewski advised police that
one report by Rio was entered into Sprigeo by school personnel after her death “so there would
33
be documentation.”
ANSWER: Admitted.
110. Thalheimer, Stevens and Thorne failed to follow the District’s sexual harassment
and bullying policies and failed to properly train District personnel on compliance with those
policies.
ANSWER: Denied.
111. Jackowiak and Wisniewski failed to enforce District policy by failing to take
appropriate disciplinary action against the students who were harassing and physically assaulting
Rio at school. To the extent District personnel took any halfhearted measures in response to the
harassment, those measures were ineffective in stopping it.
ANSWER: Denied.
112. On June 8, 2022, the District held an anti-bullying meeting for parents. The
District would not allow a local NBC affiliate which covered the meeting, WNDU 16 News Now
in South Bend, to film the event or ask questions because parents would be sharing “confidential
information,” even though it was a public meeting.
ANSWER: Defendants admit that on June 8, 2022, the District held a parent anti-
bullying advisory meeting and did not allow WNDU 16 News Now in South Bend to film or join
the meeting because parents would be sharing “confidential information.” Defendants deny the
113. According to an article published by WNDU, “over the past several months
countless parents have openly shared their stories and frustrations....” over bullying in the
District’s schools.
34
from an article published by WNDU.
114. There is reference in the article to Rio’s suicide and one parent is quoted as saying
“so many things are being swept under the rug. There’s no accountability.” Upon information
and belief, this perception is shared by many District students and their parents.
ANSWER: Defendants admit the quoted statement in paragraph 114 is an assertion in
the WNDU article attributed to a parent. Defendants are without knowledge or information
sufficient to form a belief regarding the truth of the remaining allegations in paragraph 114 of the
Complaint and, therefore, deny the same.
V. CLAIMS FOR RELIEF
COUNT 1
TITLE IX
115. Plaintiff incorporates by reference her previous allegations as if set forth fully
herein.
ANSWER: Defendants incorporate their answers to each previous paragraph of this
Complaint by reference herein.
116. This claim is brought on behalf of Rio pursuant to Title IX of the Education
Amendments of 1972, 20 U.S.C. § 1681 et seq. and its implementing regulations, 34 C.F.R. §
106.1 (“Title IX”).
117. Title IX provides that “[n]o person in the United States shall, on the basis of sex,
be excluded from participation in, be denied the benefit of, or be subjected to discrimination
under any education program or activity receiving Federal financial assistance.” 20 U.S.C. §
35
1681(a); 34 C.F.R. § 106.31(a).
ANSWER: Defendants admit the quoted statement in paragraph 117 accurately recites
the language in Title IX. Defendants deny having violated Title IX in any way.
118. Congress enacted Title IX to protect people like Rio from harassment and
discrimination on the basis of one’s sex (genetic, biological or anatomical), gender (socially-
constructed norms associated with one’s sex) or sexual orientation in the educational
environment.
ANSWER: Defendants admit that Title IX prohibits discrimination on the basis of
one’s sex. Defendants deny having violated Title IX in any way.
119. Courts apply a similar analysis to Title IX claims as they do when evaluating
claims brought under Title VII.
ANSWER: Denied.
120. Following amendments to Title IX’s implementing regulations, on or about
September 22, 2020, the District’s Board of School Trustees passed a resolution directing “the
administration to draft and recommend for approval a permanent policy and procedure
implementing the amended [Title IX] regulations.”
www.docs.elkhart.k12.in.us/district/9_22_2020_Title_IX_Resolution.pdf
ANSWER: Admitted.
121. The District operates education programs or activities that receive federal
financial assistance; namely, public schools, including but not limited to North Side Middle
School.
ANSWER: Admitted.
122. A recipient of federal educational funds intentionally violates Title IX, and is
36
subject to a private damages action, where it is deliberately indifferent to known acts of sex-
based discrimination, including harassment which is motivated by (a) the victim’s failure to
conform to gender norms, or (b) his or her sexual orientation.
ANSWER: Defendants admit the statements in paragraph 122 recite legal standards.
Defendants deny having violated Title IX in any way.
123. A cause of action under Title IX is not limited to claims of harassment or
discrimination perpetrated by adults; the statute provides a remedy in damages against a school
district in cases of student-on-student harassment where (a) the funding recipient is deliberately
indifferent to sexual harassment of which it has actual knowledge; and (b) the harassment is so
severe, pervasive and objectively offensive that it deprives the victim of access to the educational
opportunities or benefits provided by the school district.
124. Harassment or discrimination which is motivated by a belief that the victim’s
appearance, behavior or mannerisms do not conform with traditional societal expectations
associated with one’s biological sex (i.e., males looking and acting “masculine” and females
“feminine”) is unlawful gender stereotyping.
125. Despite generations of females wearing short hair and males wearing long hair,
one’s hairstyle/length remains a classic (and stubborn) example of gender stereotyping.
ANSWER: Denied.
126. Title IX guarantees students enrolled in public schools equal access to educational
37
programs and benefits; a hostile learning environment at school may deny students such access.
127. Rio had the right to go to school in an environment free from harassment and
discrimination based on gender stereotypes or sexual orientation while participating in an
educational program or activity which receives federal financial assistance; namely, while
attending North Side.
128. In addition to failing to follow its own written policy, the District has a de facto
policy, custom or practice of not addressing student-on-student harassment in its schools by
failing to properly investigate it, by failing to take supportive measures and by failing to prevent
or stop it even in the face of actual knowledge that it was occurring. This policy, custom or
practice of inaction cultivated or fostered a culture in the District which permitted a hostile
environment to exist in District schools generally and at North Side (Rio’s school) in particular.
This hostile environment deprived Rio of educational opportunities and benefits provided by the
District.
ANSWER: Denied.
129. At all relevant times, Rio was on District property during school hours when she
was subjected to multiple instances of harassment by other students over a period of
approximately seven months, from approximately August of 2021 into March of 2022.
ANSWER: Denied.
130. Rio was targeted for harassment by other students because of her sexual
38
orientation and or because her appearance (being a bald female) failed to conform to traditional
gender stereotypes. Therefore, while such conduct was generally considered “bullying,” the
conduct of the perpetrators also constitutes sexual harassment for purposes of Title IX.
ANSWER: Denied.
131. Upon information and belief, one or more District employees witnessed the
harassment of Rio at the hands of other students.
ANSWER: Denied.
132. In addition to incidents which were witnessed by District employees, Rio, her
family and other students reported the harassment to school personnel on multiple occasions.
ANSWER: Denied.
133. At all times relevant, the students who harassed Rio were under the disciplinary
authority of the District.
ANSWER: Denied.
134. District employees had actual knowledge that Rio was being harassed and
discriminated against on school property during school hours.
ANSWER: Denied.
135. District personnel had the authority to address the harassment and take measures
to stop it, yet they failed to conduct a proper investigation or adequately respond, which allowed
the harassment to continue for several months.
ANSWER: Denied.
136. Despite having actual knowledge of the way Rio was being treated by her peers,
the District failed to follow its own written policy on sexual harassment, thereby rendering Rio
more vulnerable to harassment.
39
ANSWER: Denied.
137. The District’s failure to follow its own policy includes:
• Failure of its Title IX Coordinator to respond promptly to all reports of
harassment;
• Failure of its Title IX Coordinator to meet with Rio and her parent(s) after
becoming aware of conduct which could constitute sexual harassment as
defined by its own policy;
• Failure to identify and implement supportive measures;
• Failure to promptly conduct a proper investigation into reports of
harassment;
• Failure of District staff to inform its Title IX Coordinator of alleged sexual
harassment; and
• Failure to order an emergency removal of student(s) who posed an
immediate threat to Rio’s physical safety.
ANSWER: Denied.
138. To the extent the District took any measures in response to the harassment, its
response was clearly unreasonable in light of the known circumstances and failed to stop the
harassment. Therefore, the District’s response—or failure to respond—to the harassment
constitutes deliberate indifference.
ANSWER: Denied.
139. Among other acts and omissions on the part of District personnel over a period of
several months, the District failed to properly investigate the numerous incidents of harassment.
ANSWER: Denied.
40
140. The District failed to provide Rio with appropriate supportive measures or
accommodations despite having firsthand knowledge or receiving reports of harassment.
ANSWER: Denied.
141. Despite having actual knowledge that Rio was being harassed at school, the
District failed to take appropriate steps to address or stop the harassment. As a result, Rio was
rendered more vulnerable to the harassment and/or subjected to multiple instances of harassment
at school over a period of several months.
ANSWER: Denied.
142. The District failed to properly train its employees on compliance with Title IX
and its implementing regulations; failed to adequately train school personnel how to recognize
and address various forms of behavior which may be considered sexual harassment, including
sex stereotyping and when “bullying” constitutes sexual harassment; and failed to properly train
District employees on its own anti-harassment policies.
ANSWER: Denied.
143. The District had a policy, custom or practice of not treating complaints of student-
on-student gender- or sex-stereotyping as sexual harassment and of not investigating them as
such.
ANSWER: Denied.
144. Despite having actual knowledge that Rio was being harassed, the District failed
to provide Rio or her parents with the name and contact information of its Title IX coordinator.
ANSWER: Defendants admit the District did not provide Rio or her parents the name
of the District’s Title IX Coordinator. Defendants deny the remaining allegations in paragraph
144 of the Complaint.
41
145. The District failed to inform Rio or her parents of its policies or procedures for
filing a grievance or complaint of student-on-student sexual harassment.
ANSWER: Denied.
146. In the alternative, the District failed to revise its existing policies or procedures on
harassment.
ANSWER: Denied.
147. The District’s deliberate indifference to the sexual harassment of Rio denied her
equal access to educational opportunities or benefits provided by the District, resulting in a
tangible, negative effect on her education. Specifically, Rio had the right to attend school in an
environment free of discrimination and harassment on the basis of her sexual orientation and
failure to conform to traditional gender stereotypes; however, the harassment of Rio was so
severe, pervasive and objectively offensive that it created a hostile environment at school, denied
her equal access to educational opportunities and benefits afforded other students and caused her
to commit suicide.
ANSWER: Denied.
COUNT 2
EQUAL PROTECTION
148. Plaintiff incorporates her previous allegations as if fully set forth herein.
Complaint by reference herein.
149. While Title IX implies a private right of action for victims of gender
discrimination in schools, it does not preclude a plaintiff from asserting a parallel and concurrent
constitutional claim for gender discrimination under 42 U.S.C. § 1983 based on the same
42
conduct.
Defendants deny having violated Plaintiff’s or Rio’s rights under the Equal Protection Clause of
the Fourteenth Amendment in any way.
150. Gender is a protected class under the Equal Protection clause of the Fourteenth
Amendment to the U.S. Constitution, which prohibits arbitrary discrimination by state actors,
including discrimination on the basis of gender stereotyping and sexual orientation.
Defendants deny having violated Plaintiff’s or Rio’s rights under the Equal Protection Clause of
the Fourteenth Amendment in any way.
151. Rio was discriminated against by other students at school, who harassed her
because of her sexual orientation and/or because her appearance did not conform to prevailing
cultural gender norms, i.e., societal expectations of appearance typically associated with females.
ANSWER: Denied.
152. At all times relevant, the District had actual knowledge that Rio was being
harassed by other students but turned a blind eye to the harassment. This is partly due to the
District’s refusal to recognize harassment for what it is, labeling it with the softer euphemism
“conflict” instead. Its failure to act in the face of such knowledge demonstrates the District’s
deliberate indifference towards (a) Rio’s welfare, and (b) her right to attend school without being
harassed because of her sexual orientation or because her appearance does not conform to
traditional gender stereotypes.
ANSWER: Denied.
153. The District’s deliberate refusal to respond to reports of student-on-student
43
harassment in its schools (both generally and with respect to Rio in particular) represents a
widespread practice that is so permanent and well-settled that it constitutes a custom or practice;
indeed, the District’s deliberate non-response to complaints of harassment in its schools amounts
to a de facto policy of inaction.
ANSWER: Denied.
154. As a result, the District’s custom or practice of not responding to complaints of
harassment led students to believe that they would not be punished for harassing other students
and could get away with doing so. The District’s inaction in the face of complaints by students
and parents emboldened the perpetrators, who reasonably believed that they could harass their
peers with impunity.
ANSWER: Denied.
155. There is no rational basis or legitimate state interest to justify the District’s
inaction in the face of knowledge that Rio was being harassed at school.
ANSWER: Denied.
156. By its custom or practice of ignoring student-on-student harassment and as a
result of its deliberate indifference to Rio’s rights, the District subjected her to gender
stereotyping and/or sexual orientation discrimination which created a hostile environment at
school.
ANSWER: Denied.
157. This discrimination deprived Rio of the equal protection of the law in violation of
the Fourteenth Amendment to the Constitution.
ANSWER: Denied.
158. As a direct and proximate result of the District’s custom, policy or practice of
44
ignoring students’ harassment of and discrimination against Rio on the basis of gender
stereotyping and/or sexual orientation, she suffered damages.
ANSWER: Denied.
COUNT 3
WRONGFUL DEATH
159. Plaintiff incorporates her previous allegations as if fully set forth herein.
complaint by reference herein.
160. This claim is brought under the Indiana Child Wrongful Death Act, IC § 34-23-2-
1.
161. There is a history of student-on-student harassment and bullying in the District
which is well-known to agents and employees of the District.
ANSWER: Denied.
162. At all times relevant, District personnel—including teachers, staff, administrators
and members of the school board—were aware of the existence and magnitude of bullying and
harassment which was occurring in schools operated by the District, including but not limited to
North Side.
ANSWER: Denied.
163. Since the beginning of 7th grade around August/September 2021, employees of
the District knew that Rio was being verbally harassed and physically assaulted by other students
at school on a regular basis.
45
ANSWER: Denied.
164. District personnel were also aware that students who are subjected to harassment
and bullying are at increased risk for anxiety, depression, self-injury and suicide (“bullycide”).
This well-known fact is common knowledge among school administrators across the country and
has been the subject of extensive nationwide media coverage for decades.
ANSWER: Admitted.
165. At all times relevant, the District owed Rio a duty of reasonable care and
supervision.
ANSWER: Admitted.
166. The District breached this duty by failing to exercise reasonable care and
supervision of students in its school, including Rio, and failing to protect Rio from the
reasonably foreseeable conduct of other students.
ANSWER: Denied.
167. In addition to its failure to exercise reasonable care and supervision, the District
failed to comply with its own written anti-harassment and anti-bullying polices. This failure to
comply with its own policies constitutes negligence per se.
ANSWER: Denied.
168. As a direct and proximate result of (a) the District’s negligent acts or omissions,
and (b) its failure to comply with its own policies, Rio was subjected to a relentless campaign of
verbal, psychological and physical harassment, bullying, ridicule and abuse by other students at
school.
ANSWER: Denied.
169. This harassment caused Rio to experience personal injury, severe anxiety,
46
depression and emotional distress which resulted in her suicide.
belief regarding the truth of the allegations regarding Rio’s state of mind and, therefore, deny the
same and deny the remaining allegations in paragraph 169 of the Complaint.
VI. RELIEF REQUESTED

WHEREFORE Plaintiff, by counsel, respectfully requests the following relief:
1. Judgment in her favor and against Defendants;
2. Damages in an amount sufficient to compensate her for her losses;
3. Punitive damages;
4. Reasonable attorney fees;
5. Pre- and post-judgment interest;
6. Costs; and
7. All other relief reasonable in the premises.
ANSWER: Defendants deny Plaintiff is entitled to any of the relief requested above.
ADDITIONAL DEFENSES AND AFFIRMATIVE DEFENSES
Defendants, for additional defenses to Plaintiff’s Complaint, alleges and state as follows:
1. Defendants deny every allegation, whether expressed or implied, that is not
unequivocally or specifically admitted in this Answer.
2. One or more of Plaintiff’s counts fail, in whole or in part, to state a claim for
which relief may be granted.
3. At all times, Defendants acted in accordance with their rights and obligations
under any applicable law or rule.
4. Defendants assert the affirmative defenses of any and all immunity defenses
including, but not necessarily limited to, absolute immunity, sovereign immunity, governmental
47
immunity, official immunity, quasi-official immunity, qualified immunity, quasi-judicial
immunity, quasi-legislative and limited immunity provided them under the federal constitution,
the state constitution, federal or state statutes, and/or federal or state common law as a complete
bar to the claims made against Defendants. This includes immunity under the Eleventh
Amendment to the U.S. Constitution for the claims raised in Counts I and II of Plaintiff’s
Complaint. This further includes the immunities afforded the Defendants in Ind. Code § 34-13-3-
3(7), (8), (10), and (20).
5. Plaintiff may have failed to mitigate damages, if any.
6. Defendants do not consent to trial by jury of any issue not required to be tried by
a jury.
7. Count III of Plaintiff’s Complaint is subject to and barred by the doctrine of
contributory negligence.
8. Plaintiff’s claims are subject to the limitation on liability codified in Ind. Code §
34-13-3-4 (liability cannot exceed for “injury to or death of one (1) person in any one (1)
occurrence: . . . (C) seven hundred thousand dollars ($700,000) . . .”).
9. Plaintiff’s damages under Count III of her Complaint are limited by those
categories found in Ind. Code § 34-23-1-1 and § 34-23-2-1.
10. Defendants reserve the right to amend this Answer and to assert additional
defenses as they may arise in the course of investigation and discovery and further incorporates
all defenses available under Fed. R. Civ. P. 8(c) as if fully set forth herein.
WHEREFORE, Defendants, by counsel, request Plaintiff take nothing by way of the
Complaint, that the Complaint is dismissed, and that the Court award Defendants costs and all
other just and proper relief.
48
Date: November 4, 2022 Respectfully Submitted,
/s/ Amy Steketee Fox
Amy Steketee Fox, Atty No. 25112-53

CHURCH CHURCH HITTLE + ANTRIM
Central Building, Suite 402
203 West Wayne Street
Fort Wayne, Indiana 46802
Phone: 260-399-9490 Fax: 260-399-9491
afox@cchalaw.com
Alexander P. Pinegar, Atty No. 26543-49

CHURCH CHURCH HITTLE + ANTRIM
Two North Ninth Street
Noblesville, IN 46060
Phone: 317-773-2190 Fax: 317-773-5320
afox@cchalaw.com
Attorneys for Defendants
49
CERTIFICATE OF SERVICE
I hereby certify that on November 4, 2022, I electronically filed the foregoing

Appearance with the Clerk of the Court using the CM/ECF system, which sent notification of
such filing to the following:
Alexandra M. Hawkins
Massillamany Jeter & Carson LLP
11650 Lantern Rd Ste 204
Fishers, IN 46038
317-576-8580
Fax: 317-203-1012
Email: alexandra@mjcattorneys.com
Thomas W. Blessing
Massillamany Jeter & Carson LLP
11650 Lantern Rd Ste 204
Fishers, IN 46038
317-576-8580
Fax: 317-203-1012
Email: tom@mjcattorneys.com
/s/ Amy Steketee Fox

Amy Steketee Fox #25112-53
50

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USDC IN/ND case 3:22-cv-00730-DRL-MGG document 10 filed 11/04/22 page 1 of 50

IN THE UNITED STATES DISTRICT COURT

NICOLE BALL, As Parent of )

DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT

Defendants Elkhart Community Schools and Elkhart Community Schools Board of

Trustees (collectively “Defendants”), by counsel, for their Answer to Plaintiff’s Complaint

(“Complaint”), respond as follows:

required, Defendants deny.

institution” as defined by 20 U.S.C. § 1681(c) which operates a “program or activity” as defined

ANSWER: Defendants admit that Elkhart Community Schools is an Indiana public

Schools is a public “educational institution” as defined by 20 U.S.C. § 1681(c), that it operates a

remaining allegations in paragraph 2 of the Complaint.

3. Plaintiff brings this action on behalf of her daughter to redress a hostile

educational environment pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C.

Constitution, as more fully set forth below.

required, Defendants deny.

Defendants deny the remaining allegations in paragraph 4 of the Complaint.

ANSWER: Defendants admit venue is proper in this judicial district pursuant to 28

school. She adored her 7-year old little sister.

allegations in paragraph 6 of the Complaint and, therefore, deny the same.

infectious laugh.” www.stemmlawsonpeterson.com/obituary/Rio-Allred

ANSWER: Defendants admit that the quoted statements in paragraph 8 of the

Complaint are excerpts from Rio’s obituary published at

ANSWER: Defendants admit that the quoted statements in paragraph 9 of the

Complaint are assertions attributed to Plaintiff published at

ANSWER: Defendants admit that the quoted statements in paragraph 10 of the

Complaint are assertions attributed to Plaintiff’s sister, Vanessa Cannady, published at

shared common interests and became best friends.

ANSWER: Defendants are without knowledge or information sufficient to form a

ANSWER: Defendants are without knowledge or information sufficient to form a

ANSWER: Defendants are without knowledge or information sufficient to form a

at school knew that Rio and L.D. were partners.

ANSWER: Defendants are without knowledge or information sufficient to form a

and, therefore, deny the same.

an in-person/eLearning program. Defendants are without knowledge or information sufficient to

and, therefore, deny the same.

is no known cure. https://www.naaf.org/alopecia-areata.

and, therefore, deny the same.

ANSWER: Defendants are without knowledge or information sufficient to form a

incredible bravery and strength for a 12-year old girl.

ANSWER: Defendants are without knowledge or information sufficient to form a

therefore, deny the same.

reopened for in-person instruction.

allegations in paragraph 20 of the Complaint.

grandmother bought her a beautiful brown wig which she loved.

allegations in paragraph 21 of the Complaint and, therefore, deny the same.

of North Side to begin 7th grade.

deny the same.

place than the playground.

ANSWER: Defendants are without knowledge or information sufficient to form a

ANSWER: Defendants are without knowledge or information sufficient to form a

ever reported to District administrators.

bald man.” https://en.wikipedia.org/wiki/Mr._Clean. His gleaming dome is a familiar sight to

and, therefore, deny the same.

character in an animated Canadian children’s television series about an inquisitive four-year-old

boy “popularized without a single hair on his head.” www.chouette-publishing.com/caillou

ANSWER: Defendants are without knowledge or information sufficient to form a

not look like a “typical” girl.