Tite IX claim survives in sexual assault case

In Allentown, Pennsylvania a judge has a ruled that a Title IX claim against the school district can go forward. Judge Paul Diamond dismissed civil rights claims brought by five alleged victims of sexual assault by an older student at Central Elementary School, but has ruled that the Title IX claims of four of the victims--all boys--can proceed, calling the school's response to the alleged sexual assaults "wholly inadequate." This lawsuit began in 2006 with one boy coming forward to say he had been assaulted. Last year, four others joined the lawsuit. Lawyers for the boys say the school did not take enough measures to ensure the assaults stopped even after being made aware both of the initial assaults and the alleged perpetrator's own history with sexual assault and misconduct.

Sexual Harassment Roundup

A number of judicial decisions involving Title IX's application to sexual harassment have been issued in the last several weeks.

• The Fourth Circuit Court of Appeals, reversing a lower district court, held that a plaintiff had presented sufficient evidence to survive summary judgment, and could pursue her claim that a municipal police academy is liable for the hostile environment she experienced as a cadet. This record included numerous instances of ostracism by her fellow cadets, sexualizing comments about women generally, and criticism and humiliation that negatively affected her education and performance on a handgun proficiency test, for which she was ultimately expelled. The record also contained references to numerous complaints that the plaintiffs and other academy instructors to the academy supervisor, which never resulted in any effort to protect the plaintiff or correct the offending cadets. This was actually a Title VII case, but is likely to be cited by Title IX plaintiffs as well, especially for the point that academic failures cannot be the basis for taking adverse action against a student when those failures were influenced by a hostile classroom environment. Mosby-Grant v. City of Hagerstown, 2010 WL 5151617 (4th Cir. Dec. 20, 2010).
  

• A federal district court in California granted the University of the Pacific's motion for summary judgment, and dismissed a student-athlete's claim that the university was liable under Title IX for an assault against her by three members of the men's basketball team. According to the court, the plaintiff did not present evidence that university officials had notice that the male athletes posted a threat to the plaintiff, as none knew that one of the assailants had been involved in a prior incident of assault, and another assailant's reputation as a "womanizer" was not enough to link him to prior incidents of assault. Nor did the University respond with deliberate indifference. Officials contacted the police immediately after the plaintiff's assault, conducted an investigation and convened judicial proceedings that expelled one of the students and suspended the other two. Doe v. University of the Pacific, 2010 WL 5135360 (E.D. Cal., Dec. 8, 2010).
  

• A school district in Washington is not liable for a female students' sexual abuse and harassment of her male peer, a fellow 10th grader who suffers from autism. The federal court dismissed the plaintiff's Title IX case after determining there was no evidence that school officials knew he was being abused. Even though one teacher apparently encountered the two students in a sexually suggestive position -- the female student sitting on top of the male student victim, "pretending to rape him" through their clothes -- the court determined that this could have appeared to the teacher as behavior that, while inappropriate for school grounds, was consensual rather than harassment or abuse. Though the court was careful to avoid gender stereotypes about boys' invulnerability to sexual abuse by girls, it did point out that because of the girl's small size made it more reasonable for the teacher to interpret what he saw as consensual. J.B. ex rel. Bell v. Mead School District No. 354, 2010 WL 5173164 (E.D. Wash., Dec. 10, 2010).

• A plaintiff's Title IX claim against a Pennsylvania school district survived a motion to dismiss; the court recognized that the plaintiffs' complaint sufficiently alleged that school officials had notice that a teacher and coach was sexually abusing or harassing their daughter, a student, yet took no steps to preclude Hetrick from having further contact with K.E., nor did it notify either the police or the plaintiffs about the allegations. Having survived the motion to dismiss, the case can now proceed to discovery, where the plaintiffs can gather evidence to prove their allegations. Douglass v. Brookville Area Sch. Dist., 2010 WL 5313448 (W.D. Pa., Dec. 20, 2010).

• A graduate student in social work sued both her university as well as her internship site, a municipal senior center, for sexual harassment by one of the center's clients. When the plaintiff informed the supervisor, she was advised to treat the client's behavior, which included physically, hugging her, touching her breasts and rear end, as a learning experience and an opportunity to demonstrate her commitment to social work. The federal court in Massachusetts sustained the plaintiff's constitutional claims against her on-site supervisor, as well as the Title IX claims against Boston University. The judge sustained the plaintiff's Title IX claim because she alleged that her faculty supervisors knew she was being harassed at her placement and failed to address it with the on-site supervisor or move her to a different internship site. Rinsky v. Boston Univ., 2010 WL 5437289 (D. Mass. Dec. 23, 2010).
  

• A "prank" in which a teacher and an aide pretended to cut a sixth-grade boy's long hair, and then teased the student by calling him a female name in front of both sixth grade classes, could result in the school district's liability under Title IX. A federal court in Ohio rejected the district's motion to dismiss because the plaintiff, the student's mother, alleged that her son reported the incident to school officials, who took no corrective action and forced him to return to the offending teachers' class. Anoai v. Mildford Exempted School District, 2011 WL 53164 (S.D. Ohio, Jan. 6, 2011).
  

Sexual Harassment Roundup

Schools prevailed in three recent Title IX cases involving sexual harassment:

• A federal court in Pennsylvania refused to enjoin a university disciplinary proceeding allegedly filed in retaliation against a victim of sexual assault for reporting her abuser to authorities. The court recognized that the plaintiff "raises serious concerns about the protections afforded to victims of sexual assault" in that the hearing will require her to confront the person she has accused of sexual assault within one month of the alleged incident and to respond to his charges that her accusations are false. However, the court determined that the hearing itself does not amount to harassment or discrimination against the plaintiff, in part because it will be conducted by a chairperson who can ensure that all questions remain relevant and appropriate, and that the perpetrator of the alleged assault does not have the chance to directly question the victim. Sefanowtcz v. Bucknell Univ., 2010 WL 3938243 (M.D. Pa. Oct. 5, 2010).

• An elementary school's response was sufficient to preclude Title IX liability for a sexual incident between kindergartners, a federal magistrate has ruled. School officials discovered that one boy touched another's genitals while alone together in the bathroom. The principal then discussed the incident with both boys and their parents, and required oversight to ensure that the boys would not use the bathroom at the same time. These efforts did not prevent a second sexually-suggestive incident between the boys in the bathroom, but they nevertheless could not be characterized as "deliberate indifference." There was no evidence other than the first incident that would have suggested that the perpetrating student would continue to harass the victim, so the district's decision to address this issue with a monitoring requirement. Nor does the fact that the boys somehow managed to evade the bathroom monitor charged to keep them separated render the school's response indifferent one. Brooks v. City of Philadelphia, 2010 WL 392835 (E.D. Pa. Oct. 5, 2010).

• The Eight Circuit recently granted a school district's motion for summary judgment on a plaintiff's Title IX and constitutional claims stemming from the sexual misconduct of a basketball coach at Delight High School in Delight, Arkansas. The plaintiff's parents sued the school district and various officials after learning that the coach, Chad Smith, was having a sexual relationship with their daughter, a player on the team. On appeal from a decision denying the motion, the appellate court determined that the facts alleged failed to satisfy Title IX's requirement that school district officials have actual notice of sexual abuse or harassment and responded with deliberate indifference. Specifically, the court rejected that prior claims of inappropriate text messaging by Smith produced such notice. District officials had investigated and addressed these messages, and with regards to the only message with sexually suggestive content, determined that it not been sent by the coach at all. The principal also followed up on a rumor that the plaintiff's daughter was skipping class to spend time with Smith, but found no evidence to corroborate this claim. Moreover, other claims of misconduct by the coach (threatening players and directing them in an act of poor sportsmanship) -- though resulting in the district's decision not to renew his contract -- failed to provide adequate notice that he was sleeping with a player. Doe v. Flaherty, 2010 WL 4068748 (8th Cir. Oct. 19, 2010).
  

School Principal May Be Individually Liable for Teacher's Abuse

A recent Seventh Circuit decision addressed an elementary school principal's potential liability for a music teacher's sexual abuse of students. The students sued the school, the principal and the teacher on several theories of liability, including Title IX, constitutional violations, and state law claims. While the Title IX claims against the school and the state law claims against the teacher are set for trial, the principal moved to dismiss the claims that she had violated the plaintiffs' constitutional rights to equal protection and due process, arguing that she was protected from liability under the doctrine of qualified immunity.

Qualified immunity shields government officials (including public school officials) from individual liability. However, it does not apply when the official is charged with violating the plaintiffs' clearly established constitutional rights. If the substance of the plaintiff's legal argument presents a close call under constitutional law, the official is protected and the lawsuit is dismissed. But if the plaintiff's legal argument is clear winner under constitutional law, then the official is not protected, and the lawsuit may proceed so that the plaintiff can try to prove the facts of her case.

In this case, the Seventh Circuit acknowledged that sexual abuse may violate a student's rights under the Constitution's Equal Protection clause. Moreover, it was "clearly established" at the time of the events giving rise to this case that a supervisor could be liable for condoning, covering up, or turning a blind eye to the abusive conduct of a supervisee. The court agreed with the principal that recent Supreme Court decision, Iqbal v. Ashcroft, requires plaintiffs to allow allege the supervisor's discriminatory intent in such cases. However, In addition, a supervisor charged with violating the Equal Protection Clause for such conduct or indifference must to do with the intent to discriminate. But the court thought that a jury could infer from evidence that the principal helped cover up the teacher's molestation that the principal also had a purpose of discriminating against the girls based on their sex. The court therefore refused to dismiss the equal protection claims against the principal.

The court also held that qualified immunity would not shield the principal from the plaintiff's due process claims. Under the due process clause, citizens have a protected liberty interest in their right to bodily integrity -- a right that is impaired when one is physically molested by a state-employed teacher. The court considered it "clearly established" law at the time of the events in this case that a principal whose own conduct creates or exacerbates the risk that a student will be molested violates the due process clause. As noted, the plaintiffs allege that the principal actively covered up abuse, exacerbating the risk to the students. Therefore, this claim was also outside the scope of the principal's qualified immunity defense, and the principal's liability will also be decided at trial.

Decision is: T.E. v. Grindle, 2010 WL 938047 (7th Cir. Mar. 17, 2010).

School District Not Liable For Harassment by Former Teacher

The Seventh Circuit Court of Appeals recently ruled that the McLean County School District was not liable for the harassment committed by a former teacher at his new school. From 2002 to 2005, Jon White was an elementary school teacher in McLean County, Illinois. According to the plaintiff's complaint, school district officials were aware of his sexually harassing and abusive behavior, which included such disturbing things as "hugging students and holding them on his leg, having students massage him and wrap their legs around him, showing students sexually suggestive photographs, and commenting on students' sexual attractiveness," as well as engaging in something called the “taste test game,” in which White would "blindfold students and then place foods in their mouths using a banana, his hand, or his penis."

Rather than fire White outright, the McLean County School District got rid of him quietly and, according to the plaintiffs, "intentionally concealed" his sexual misconduct to his next employer, the Urbana School District -- even writing him a positive letter of recommendation. There White proceeded to harass and abuse more students, including the anonymous plaintiff in this case, Jane Doe-2. Doe-2 and other victims filed tort and Title IX claims against the McLean School District. However, a district court dismissed the tort claim on the grounds that McLean does not owe a duty of care to students in other districts. It also dismissed the Title IX claim because the harassment of Doe-2 occurred outside the scope of McLean's control.

The appellate court agreed with both results. In its Title IX analysis, of particular interest here, the court did not agree that McLean officials had notice that White would sexually abuse Urbana students. But even if they did, the court reasoned, the McLean officials did not have control over harassment Jon White was perpetrating in the Urbana schools.

To me, this reasoning takes an unnecessarily narrow view of the requirement that, for Title IX to apply, a school district have the ability to control or prevent harassment. Assuming truth of the plaintiff's allegations, McLean officials had control over White at the moment the other requirements for Title IX liability occurred; that is, at the time they learned White was a risk to future students, and at the time they responded with deliberate indifference to this knowledge by letting White go quietly. I think that the Seventh Circuit's rule gives every incentive to school districts to behave exactly as McLean is alleged to have behaved. This decisions creates a loophole from the requirement that school districts act reasonably when confronted with evidence of sexual harassment; they can avoid the hassle of disciplining or terminating an abusive teacher and still shield themselves from Title IX liability by making sure that the teacher's continuous misconduct occurs outside the district. The Seventh Circuit claims to be acting in accordance with the Supreme Court's professed reluctance to expand statutory remedies through implied rights of action. But the Seventh Circuit's rigid control test does more than refrains from expanding remedies under Title IX -- it completely undermines those remedies.

Decision: Doe-2 v. McLean County Sch. Dist., 2010 WL 199625 (7th Cir. Jan. 22, 2010).

City of Nashville Pays > $1 Million to Victim of School Bus Assault

The City of Nashville recently settled with a parent and the Department of Justice, whose lawsuit challenged the school district's failure to protect the plaintiff's 9 year old, autistic son from peer-on-peer sexual assault on the school bus provided to children with special needs. Last July, a federal district court denied the city's motion for summary judgment on several claims, including a Title IX claim, after determining that prior instances of assault on special needs school buses -- including by the perpetrator of assault in the instant case -- could be viewed as having put the city on notice of the risk to the plaintiff's son. Under the settlement, the city will pay $1.475 million to the victim to compensate him for damages resulting from the assault, including severe post-traumatic stress disorder. The city must also take preventive measures to protect students going forward, including staffing bus monitors on special needs buses, screening procedures to ensure that students are not assigned to buses where they would be at risk, expediting investigation of sexual harassment claims by students with disabilities, and improving communication between transportation officials and school personnel.

Decision on summary judgment is here: Lopez v. Municipal Gov't of Nashville, 646 F.2d 891 (M.D. Tenn. 2009).

Roundup of Recent Harassment Cases

Here are summaries of the four most recent federal court decisions in cases involving Title IX and sexual harassment. All four are favorable to the plaintiffs.

• The federal district court in Arkansas denied the Fayetteville School District's motion to dismiss several of plaintiff Billy Wolfe's claims that its failure protect him from anti-gay harassment violated Title IX and the U.S. Constitution. The court also left open the possibility that the plaintiff could receive punitive damages if he prevails on his Title IX claim. Wolfe v. Fayetteville, Arkansas School Dist., 2009 WL 485400 (W.D. Ark. Feb 26, 2009).

• A federal court in Michigan denied the Merrill Community School District's motion to dismiss Title IX claim sexual harassment suit brought by an eighth grade girl who was raped by a ninth grade boy. The plaintiff alleged that the school district knew of the boy's prior sexual misconduct at his former school, his general disciplinary problems, and several acts of aggression and harassment against the plaintiff that preceded the rape. The court reasoned that it would be possible for a jury to conclude based on these facts that the district's response constituted the deliberate indifference required for Title IX liability to attach. Doe v. Merrill Community School District, 2009 WL 817534 (E.D. Mich. Mar. 26, 2009).

• Parents' Title IX claim against the School District stemming from a teacher's sexual abuse and harassment of their first grade children survived the district's motion to dismiss. The court rejected the district's argument that the parents had not provided adequate notice of to anyone in the district with authority to curtail the teacher's ongoing conduct. The plaintiffs alleged that three different sets of parents informed the principal and assistant principal over the span of three months that the teacher had asked a student for a massage under his clothes, that he regularly isolated female students, that he had "bounced a student on his lap in a strange manner," and that the teacher was making the first graders uncomfortable with his touching. (Really? The school district did nothing with this information?) Doe ex rel. Doe v. White, 2009 WL 890557 (C.D. Ill. Mar. 30, 2009).

• Citing the Supreme Court's recent decision in Fitzgerald v. Barnstable School Committee, the federal district court in Arizona granted a plaintiff's motion to reconsider the court's earlier dismissal of her Equal Protection claim on the grounds it was preempted in by Title IX. Power v. Gilbert Public Schools, 2009 WL 890482 (D. Ariz. Mar. 31, 2009).

Appellate Court Affirms District Not Liable for Harassment on School Bus

Last fall we described a federal district court's decision to grant summary judgment in favor of the Barnstable (Massachusetts) School Committee and dismiss the Title IX case brought by parents to challenge the sexual harassment their kindergarten daughter experienced at the hands of third-grader on the school bus.

A school district is liable for peer harassment if it receives actual notice of ongoing harassment and responds with "deliberate indifference." The district court was unable to find the school district liable under this standard because after the parents learned of the harassment and reported it to the school, they never let their daughter ride the bus again. For this reason, the kindergartner was not subject to any further harassment. Thus, the district court said, it could not be determined whether the school district's response was deliberately indifferent or whether it would have been effective at preventing the victim's harassment.

On appeal, the First Circuit Court of Appeals affirmed the district court's result, but clarified its reasoning. Contrary to the implications of the district court's ruling, a single reported incident of harassment can potentially give rise to Title IX liability. The adequacy of the school district's response is not measured by whether or not the victim actually experiences harassment after putting the school on notice, but whether the school district's response to notice of harassment is a reasonable effort to curb future harassment.

The appellate court then concluded that the school district's response was a reasonable effort rather than an indifferent one. After learning of the harassment, the principal immediately began an investigation, which it diligently pursued. The school also offered to change the victim's bus assignment and/or to make seat assignments that would separate the younger kids from the older kids on the bus. And while the court did not necessarily condone the school's decision not to take disciplinary action against the third grader, it affirmed the school's decision as a reasonable effort to balance competing interests in ensuring students' safety as well as responding with sensitivity to the third grader. (As we've noted in prior posts, there's a case to be made that schools should respond to sexual misconduct by elementary school children with educational, corrective measures rather than punishment, since children that young are unlikely to understand that sexual behavior is inappropriate and/or may be the victims of sexual misconduct themselves.)

Decision is: Fitzgerald* v. Barstable School Comm., 2007 WL 2914546 (1st Cir. Oct. 5, 2007).

*Unlike the district court, which referred to the parties by pseudonyms to protect their anonymity, the First Circuit decision uses the plaintiffs' real name. That is why the decision has a different name on appeal.