Sexual Harassment Roundup

Here are summaries of three recent decisions in Title IX sexual harassment cases from around the country.

As reported here, a federal judge will let the mother of a bullied middle school student continue to pursue her lawsuit against the Cypress-Fairbanks (Texas) Independent School District, having denied the district's motion to dismiss her claims under Title IX. The bullied student, Asher Brown, committed suicide in 2010 after enduring two years of bullying and harassment by his peers, who targeted Brown for his perceived sexual orientation among other reasons. Brown's Asperger's syndrome challenged his ability to interact socially with his peers. Additionally, Brown was small, not athletically inclined, talked with a lisp, and pigeon-toed -- a condition that caused him to walk with a "sashay." The court determined that the plaintiff sufficiently alleged that Brown was targeted because of sex, in that the bullies' perception of Brown's homosexuality was rooted in his gender nonconforming behavior, as evidenced by the gay slurs and other sexual behavior that they used to taunt him. The court also accepted plaintiff's allegations that the school district was on notice of the harassment, notwithstanding that the middle school principal did not know, because Brown and his parents complained regularly to counselors, teachers, and other school officials with authority to take corrective action. They further allege that in response to their complaints, no action was taken to address the bullies or protect Brown from further harassment. Barring settlement, a trial will take place likely next year. Brown v. Ogletree, 2012 WL 591190 (S.D. Tex. Feb. 21, 2012).

Another federal court dismissed Title IX claims against Blackburn College, in Illinois, stemming from the rape of a female student, the plaintiff, by an unknown attacker. According to the court, undisputed facts demonstrate that the college did not have actual notice of the threat. While agreeing with the majority of courts that the threat of harassment need not be "plaintiff-specific," the court nevertheless found insufficient basis to conclude that college was aware of a risk in this case, as prior instances of campus rape known to officials at the time of plaintiff's assault did not involve unknown attackers. Nor was Blackburn indifferent to sexual harassment after plaintiff reported the rape to college officials. College counselors met with the plaintiff on the night of the assault and many times thereafter, officials held a town hall meeting about campus safety, assisted her with off-campus resources, and offered academic accommodations. This response is not deliberate indifference as required for Title IX liability to attach. Doe v. Blackburn College, 2012 WL 640046 (C.D. Ill. Feb. 27, 2012).

A federal court dismissed Title IX and other claims against the District of Columbia arising out of a teacher's alleged sexual relationship with a high school student. According to the court, the student-plaintiff did not allege that she reported the relationship to anyone. Though her pregnancy was known, she did not report nor was anyone aware that the pregnancy resulted from a sexual relationship with a teacher. Once the District officials did receive report of the relationship, they investigated the matter and ultimately found the teacher not liable. According to the court, "In light of the breadth of this investigation and its inconclusive results, DCPS can hardly be said to have acted with deliberate indifference by not firing Weismiller [the teacher] then. Finally but significantly, Plaintiff does not allege that further sexual harassment occurred as a result of [DCPS's] deliberate indifference." Blue v. District of Columbia, 2012 WL 746400 (D.D.C. Mar. 8, 2012).

Settlement Ends Harassment Investigation Against Minnesota School District

This week, the Departments of Education and Justice announced that the Anoka-Hennepin school district in Minnesota will agree to a settlement resolving the Departments' joint investigation of claims that the district's failure to investigate claims of gender-based harassment violates Title IX. The settlement also terminates litigation entered into on behalf of six student plaintiffs who have suffered harassment at the hands of their peers because they were gay, perceived gay, or have gay parents. In recent years, four students at Anoka-Hennepin have committed suicide in response to bullying.

Justice officials are calling the settlement "the most comprehensive and detailed school harassment agreement in the history of the Department of Justice." It requires the school district to identify and quickly address "hot spots" from which multiple complaints of harassment originate. Other provisions of the agreement require the school district to:

• Retain an expert consultant in the area of sex-based harassment to review the district’s policies and procedures concerning harassment;
• Develop and implement a comprehensive plan for preventing and addressing student-on-student sex-based harassment at the middle and high schools;
• Enhance and improve its training of faculty, staff and students on sex-based harassment;
• Hire or appoint a Title IX coordinator to ensure proper implementation of the district’s sex-based harassment policies and procedures and district compliance with Title IX;
• Retain an expert consultant in the area of mental health to address the needs of students who are victims of harassment;
• Provide other opportunities for student involvement and input into the district’s ongoing anti-harassment efforts;
• Improve its system for maintaining records of investigations and responding to allegations of harassment;
• Conduct ongoing monitoring and evaluations of its anti-harassment efforts; and
• Submit annual compliance reports to the departments.

The consent decree will remain in place for five years.

Sexual Harassment Roundup

A federal district court in Massachusetts has refused to dismiss Title IX and other claims against Palmer Public Schools stemming from a male guidance counselor's sexual relationship with a female high school student. According to the court, plaintiff sufficiently alleged the required notice and deliberate indifference. In particular, the plaintiff alleged that prior to the guidance counselor's sexual affair with her, school officials had notice of allegations that he had had sex with another student and were concerned about his tendency to get "too cozy" with students. Yet, he was not disciplined or supervised in any way to protect female students. The only actions school officials did take were stopping a female student from placing her legs on his, directing him to remove pictures of female students from his office wall, and "contemplating—but never effectuating—" transferring him to the middle school. Doe v. Fournier, 2012 WL 591669 (D. Mass. Feb. 22, 2012).

In contrast, a federal district court in Washington held that plaintiffs did not sufficiently allege that school officials had notice and were deliberately indifferent to signs that a school counselor posed a risk to students prior to having molested the plaintiffs. Plaintiffs had argued that school officials should have been on notice of this risk because they knew that the counselor had once taken a student away from school during lunch hour (with the parent's permission) and that the counselor had once massaged a student in his office. These allegations, if true, do not provide a sufficient basis for the court to conclude that school officials had actual notice that the counselor was or could become a child molester. Doe v. Coleville Sch. Dist, 2012 WL 554430 (E.D. Wash. Feb. 21, 2012).

The Court of Appeals for the Sixth Circuit recently affirmed a lower court's decision to dismiss a Title IX case against a Michigan school district brought by a plaintiff alleging that the school was indifferent to the risk of sexual assault posed by another student. The appellate court rejected plaintiff's argument that the perpetrating student's lengthy history of disciplinary policies, including acts of sexual harassment that took place at other schools, put the school on notice and triggered a responsibility to protect the plaintiff from assault. Interpreting the notice requirement more narrowly than other courts, this court held that acts of harassment against other victims are not sufficient to put a school district on notice of the risk of harm in a particular plaintiff's case. Pahssen v. Merrill Community Schools,2012 WL 333779 (6th Cir. Feb. 3 2012).

Lastly, a federal district court in Louisiana dismissed Title IX charges against a school stemming from the sexual assault of a female middle school student plaintiff by three male peers. The plaintiff argued that school officials were informed of the first incident of harassment, which occurred in January 2008, but did not take sufficient steps to protect her from a second incident, which occurred in March of that same year. The court reasoned that while, in retrospect, more could have been done to punish the perpetrators and protect the victim, the school's response was not unreasonable in the moment, having required each perpetrator to serve a four-day out-of-school suspension followed by a period of in-school suspension of 14 days for the primary perpetrators and two days for the less-responsible perpetrator. However, the court agreed that the plaintiff could continue to litigate her retaliation claim, based on evidence that her residency was investigated and she was expelled from the district after complaining about the January incident, as well as evidence suggesting that the plaintiff was singled out for such investigation. Pemberton v. West Feliciana Parish School Bd.,2012 WL 443860 (M.D.La., Feb. 10, 2012).

What's happening at Yale?

The news over alleged and potential sexual assault and the sexual climate/culture at Yale does not seem to be dying down. We get notice of another article/editorial/blurb pretty much daily. We haven't done a great job covering the story, but here is something of an update.
The most recent high-profile issue has been the controversy over what Yale quarterback Patrick Witt did or did not do and when he did or did not do it. I am not going to re-hash the whole thing because it seems that no one really has the answers--in part because people/entities have chosen NOT to go looking for them and in part because some of the so-called answers are of questionable origins. The basics: Witt was accused of sexual assault by a female student. She opted for the informal complaint process in which there is no investigation and no formal disciplinary action apparently. The alleged benefit, according to Dean Mary Miller, "is a simpler route to resolution"--as reported in the Yale Daily News.
It also allows the complainant to remain anonymous. And that, I am guessing, was part of the appeal of this process for this female undergraduate. I imagine it would be very difficult to be the woman who accused the quarterback, who is also a potential Rhodes Scholar, of sexual assault. And the process has worked in that she has remained anonymous. But the article above notes that the majority of complaints filed are done so using the informal process.
Last week Yale released, in a greater effort at transparency, the first ever report on the number of sexual misconduct complaints on campus (it included those filed between July and December of last year). There were 52 complaints--42 of them were addressed using the informal process.
I think further inquiry into the campus climate needs to occur. Why is this the preferred process? Why is it seen as easier? Granted, being known as a potential victim and complainant is not enjoyable--but are the students at Yale more afraid of being outed than is usual?
Also at issue was the myriad of ways in which complaints were filed. Part of the concern when the initial complaint was filed with OCR in March 2011 by the group of current and former students was the lack of information students had about how and where to address alleged sexual misconduct. Information has been flowing and students are more aware of their options. But are there too many options? Very few complaints were filed with the campus police--which seems to be one of the most obvious places to go. Is this a comment on the Yale campus police? Or on the campus itself?
Most of the complaints were brought to Title IX coordinators. Yay that people know who the Title IX coordinators ARE on campus. But all these complaints are of an informal nature. This article outlines the benefits and drawbacks of an informal complaint system. I think it would be interesting to see how this theory specifically applies to Yale taking into consideration the comments on the campus climate.
And speaking of campus climate...
Another of the controversies at the New Haven campus has been the presence of Sex Week. It was cited as one of the events that contributed to a harmful sexual climate on campus. But President Levin has allowed the week-long event to take place this week because the organizers (who were not named in this brief article) noted an educational purpose for each activity/lecture. Included in the line-up are lawyer Ann Olivarius who was instrumental in sex discrimination and sexual harassment law in the 1970s. Also on the bill is Maggie Mayhem, who works in the porn industry as an actress.
This editorial by a student explains that this year's Sex Week has quite a different tone than last year's. It also provides some anecdotal evidence of the sexual culture at Yale, including his own experience as part of the freshman class a few years ago which was told by their college dean to get to know one another--biblically. He speaks rather thoughtfully about Yale culture and culture at large. It's worth a read and definitely provides more information than other news stories I have tried to find on this subject.
We are sure there is plenty more to come from Yale. The Witt situation still does not seemed resolved (apparently one of the drawbacks of the informal process!), OCR has not completed its investigation or issued findings, and Yale continues to search for ways to successfully meet the needs of its students on these issues.

Sexual Harassment Roundup

Federal courts recently issued decisions in a couple of Title IX sexual harassment decisions.

The Ninth Circuit Court of Appeals recently upheld a lower court's decision to dismiss claims filed by a former student that the University of the Pacific failed to protect her from sexual assault by three members of the men's basketball team because they were deliberately indifferent to an earlier rape involving one of the assailants in her case. The court of appeals rejected that a general description of the attackers in the earlier rape and an officer's "suspicion" as to his identity constituted "actual notice" that a student involved in the plaintiff's rape was a threat to fellow students, as required for Title IX liability to attach. The court also rejected the plaintiff's argument that the university's Judicial Hearing Board's decision to expel one rather than all three of the assailants constituted deliberate indifference. The decision to suspend two of the assailants instead, and subject them to sexual assault awareness education and a probationary status, was not an unreasonable response to known incident of sexual assault. Doe v. University of the Pacific, 2012 WL 269901 (9th Cir. Jan. 31, 2012).

A federal district court in Delaware dismissed a Title IX lawsuit against Caesar Rodney High School, in which the plaintiff, a student, alleged that school officials were indifferent to her report that she was being physically abused by her boyfriend who was also a student. The court concluded that the school responded reasonably to the student's and her mother's reports about the violence, including having the assailant arrested and suspending him for criminal violence that occurred on school grounds, allowing the plaintiff to leave early from her classes and changing her locker assignment to limit her exposure to him in the hallway, and calling the police to report harassing text messages he sent to her outside of school. The court rejected the plaintiff's argument that school did not protect her from harassment by the assailant's friends, because she did not allege that she had reported to this to appropriate school officials or to any school personnel with sufficient time for response. The court also discounted alleged statements by school officials that plaintiff argued indicated their indifference (such as the plaintiff being told she is a "strong girl" who could overcome what was happening to her), reasoning that the statements were "rebutted by the actions taken" to address incidents of harassment. P.K. ex rel. Hassinger v. Caesar Rodney High School, 2012 WL 253439 (D. Del. Jan. 27, 2012)

Teacher Harassment Case Settles for $600K

The Susquehanna Township School District in Pennsylvania will reportedly pay $600,000 to settle a lawsuit filed against it by a former student who alleged she was sexually assaulted by a drivers education instructor, and who thereafter was harassed at school for filing charges against him. We have blogged about this case before when the court denied the defendant's motion to dismiss and motion for summary judgment. In the latter, the judge determined that the instructor's violation of school policies in the past should have put it on notice that female students were at risk. The judge faulted the school district for taking a “lackadaisical approach” to disciplining the instructor, noting that if officials had followed up to ensure that he was complying with, for example, the policy prohibiting him from being alone with students during "behind the wheel" instruction, it could have prevented plaintiff's assault.

The article linked above notes that Susquehanna lacks the legally-required Title IX Coordinator -- a person designated to receive Title IX complaints from students and oversee the districts implementation of the law. And the superintendent "doesn't know of any district that does" have one. (Hello? OCR?) It's not clear from the article whether that is an issue being addressed by the settlement, but hopefully the district appoints a Title IX coordinator as part of its reported efforts to improve sexual harassment policy going forward.

Court Dismisses Claims in Bully-Suicide Case

Last week, a federal court dismissed claims filed by the estate of Jon Carmichael, a thirteen-year-old from Texas who committed suicide in March of 2010, after enduring years of bullying by his peers. The court reasoned that the plaintiff's complaint contained insufficient allegations that the bullying targeted Carmichael "because of sex," as required to sustain a Title IX claim. The complaint did allege that bullies had called Carmichael "fag, queer, homo and douche," which the plaintiffs argued suggested that he was bullied because he did not conform to gender stereotypes, and thus "because of sex." But the court dismissed that allegation of significant of a sexual or gender-based motive, pointing out that the statements accompanied a particular act of bullying in which Carmichael had been stripped nude, tied up, and put in in a trash can. According to the court,

Experience and common sense teach that bullies and harassers of this age are not particular about what they say when bullying and harassing their victims. While their words might reveal an animus based on the victim's male gender, they may also simply represent more generally a characteristic of the perpetrator's sociopathic behavior, regardless of the victim's gender.

In a way, the judge is right that what the bullies are saying as bully is not particularly meaningful or probative of motivation or intent. But the social context of male-on-male bullying makes clear that it's entirely about sex and gender. Whether its because the victim is short, not good at sports, or perceived to be gay, the point of bullying is to sustain a power imbalance between men and women by ascribing power to those who are most traditionally masculine (big, strong, straight, good at sports) and devaluing those who do not conform to that stereotype. Relatedly, many bullies bully in order to prevent themselves from being at the bottom of the pecking order within male groups and thus closer to the group (girls) constructed as inferior. While the court might rightly distinguish this motive from picking on the victim because of his perceived gender nonconformity, it is still bullying that is, at its core, about sex, because it is about the imbalance of power between (and thus, within) the sexes.

Decision is: Estate of Carmichael v. Galbraith, 2012 WL 13568 (N.D. Tex. Jan. 5, 2012).

UNI Undertakes Title IX Compliance Review

The University of Northern Iowa is undertaking a comprehensive Title IX compliance review, officials announced this week. UNI reportedly has hired an outside firm to examine "'all policies and procedures that funnel into Title IX' including student misconduct, harassment and discrimination, communication, outreach and training." This kind of review is the first of its kind at UNI, which has in the past conducted a narrow review of its sexual misconduct policy but never one as broad as has been described. It also sets UNI apart from its peers, as this this article suggests, by undertaking a review that is broader than sexual abuse reporting policies as other public Iowa universities have done in the wake of the Penn State scandal.

The review will undoubtedly examine the university's response to a 2004 incident in which a female student was assaulted in her dorm room by two UNI football players. In 2007, the student sued the university, arguing that the university's hostile and indifferent response constituted a violation of Title IX. She argued that university officials treated her with "great animosity," denied her academic accommodations and a request to change dormitories, and failed to respond to reports that she was receiving harassing calls from players. After she was forced to quit school, the university sent her tuition bill to a collection agency and the dean of students told her she was disappointed "she didn't tough it out." All of this, if proven true, sounds like a classic case for institutional liability under Title IX.

This lawsuit remains pending, and there is no apparent, direct connection between the this litigation and the university's decision to undertake a comprehensive review at this time--i.e., there's no court order or settlement agreement telling them to do so. And obviously, changing problem policies going forward will not absolve the university for violations it may have committed in the past. All of this underscores the university's claims that it is taking this step in a voluntary, proactive manner. In that regard, more universities should follow UNI's lead, and review their sexual harassment and related policies not as a reaction to sexual assault, misconduct, abuse, and cover-ups, but in an effort to keep those things from happening in the future.

Sexual Harassment Roundup

Here is a roundup of some recent sexual harassment cases.

• Title IX claims based on a teacher's inappropriate relationship with a student failed for lack of actual notice. "The complaints against Sweet were nothing more than specific facts that she was a poor teacher. But, mere suspicions are insufficient to prove actual knowledge that Sweet engaged in misconduct." Doe v. St. Francis Sch. Dist., 2011 WL 6026612 (E.D.Wis. Dec 05, 2011).

• A district court dismissed Section 1983 claims against a middle school principal in his individual capacity, finding that the complaint against him did not allege conduct that would put him outside the realm of qualified immunity from suit. Specifically, the court held that the complaint did not satisfy the standard set forth in the Supreme Court's ruling in Ashcroft v. Iqbal because it did not specifically allege that the principal acted with discriminatory intent. C.C. ex rel. Andrews v. Monroe County Bd. of Educ., 2011 WL 6029758 (S.D.Ala. Dec 05, 2011).

• A district court in California dismissed most of the claims arising from the harassment of an openly-gay student who committed suicide. Specifically, the plaintiff--the deceased student's mother--did not allege sufficient facts to support a conclusion that teachers participated in the sexual harassment of her son. Some of the plaintiff's allegations of harassment by teachers failed because it was not clear they were targeting the victim because of gender non-conformity; the remainder failed because alone they were not sufficiently "severe or pervasive" as required for institutional liability to attach. Other claims under 1983 and the Equal Protection Clause against school district officials in their individual capacity, based on survived a motion to dismiss. Walsh v. Tehachapi Unified School Dist., 2011 WL 5156791(E.D.Cal. Oct 28, 2011).

And this decision is several months old, but it just showed up on my radar, and is worth noting:

• A district court in New York dismissed a lawsuit against a school district in which the plaintiff alleged she was harassed by fellow students after another posted photos of her in a sexual encounter with another female. The district court confirmed that Title IX does not cover sexual orientation, so harassment in which the plaintiff was called derogatory names for a lesbian was not actionable. Nor did school district officials have actual notice that the pictures had been posted (on a non-school-related website) or that they had been set as the "wallpaper" on school district computers, and when they did find out, they acted promptly to remove the pictures from the internet and the school computers. Finally, "defendants' purported failure to immediately alert plaintiff's parents or “the authorities” to the existence of pictures of plaintiff on the internet does not establish a triable issue of fact because, inter alia, such failures did not subject plaintiff to harassment, or make her more vulnerable to it." Tyrrell v. Seaford Union Free School Dist., 792 F.Supp.2d 601 (E.D.N.Y. Jun 01, 2011).

Article Critiques Massachusetts's Anti-Bullying Statute

New England School of Law professor and Title IX lawyer Wendy Murphy recently published an article in the New England Journal of Crime and Criminal Confinement that analyzes and critiques anti-bullying statute that Massachusetts enacted last year. The statute requires school districts to enact bullying prevention policies that include “clear procedures for students, staff, parents, guardians, and others to report bullying or retaliation; . . . clear procedures for promptly responding to and investigating reports of bullying or retaliation; . . . the range of disciplinary actions that may be taken against a perpetrator for bullying or retaliation; . . . [and] a provision that a student who knowingly makes a false accusation of bullying or retaliation shall be subject to disciplinary action." School officials are also required to report any instance of bullying to the principal, who is then required to investigate the claim, report to law enforcement if the criminal in nature, take disciplinary action against the perpetrator, and notify the parents of all students involved.

According to Murphy, the law lacks meaningful enforcement. Specifically, by precluding a private right of action for victims, the law insulates school officials from legal action when they fail to comply with the law. At the same time, students have the right to sue school officials for discipline that curtails their constitutional right to free speech -- which may cover verbal harassment and cyberbullying. Thus, school officials are have stronger incentive to over-protect bullies to avoid the risk of liability under the First Amendment.

She also criticizes the statute for failing to address the overlap between bullying and civil rights. This omission tends to frame bullying and harassment as separate categories of conduct, which may steer victims of bullying from pursuing remedies under civil rights laws like Title IX. She argues that, in addition to amending the statute to provide a remedy against school officials for failing to address bullying in the manner required by law, the legislature should also incorporate "a clear cross-reference to federal and state civil rights laws in anti-bullying statutes."

Citation: Wendy Murphy, Sexual Harassment and Title IX: What's Bullying Got to Do With It?, 37 New England J. of Crime and Criminal Confinement 305 (2011).

Sexual Harassment Round-up

Here is a round-up of recent judicial decisions in Title IX sexual harassment cases. These summaries were prepared at my direction and supervision by Western New England law student Shiona Heru.

• The First Circuit Court of Appeals addressed important questions regarding the actual notice requirement of a Title IX claim when they affirmed a lower court’s decision to dismiss a hostile environment harassment claim filed by the mother of a six-year-old special education student against Puerto Rico for alleged sexual abuse by a bus driver. According to the record, the mother reported the abuse to a special education teacher who in turn referred the mother to a social worker. The mother claimed that the social worker “did not do anything” and that she tried to meet with the principal several times before removing her son from school and filing a lawsuit. The appellate court dismissed the mother’s claim because she failed to allege that the principal had actual knowledge of the sexual abuse and had the authority to enforce corrective measures against the alleged harasser on behalf of the school department.. The court rejected that the principal had “, constructive knowledge” sufficient to satisfy the notice requirement by virtue of the mother’s unsuccessful attempts to contact the principal. The court emphasized that a plaintiff cannot establish institutional liability through allegations that a school employee did not inform someone with the proper authority to take corrective action. Perhaps more importantly, the plaintiff has to prove that the funding recipient not only has control over the service provided and the environment in which the harassment occurs, but also that the appropriate person has actual knowledge of the harassment. In this case, the plaintiff is free to pursue her local law claims in Puerto Rico. Santiago v. Puerto Rico, 2011 WL 3689000 (1st Cir. Jul. 27, 2011).

• A high school student’s Title IX claim against a school district in Pennsylvania survived a motion for summary judgment when the lower court determined found that a jury could find that a teacher conditioned the plaintiff’s ability to pass a driving test on her submission to his unwelcome sexual harassment advances. (We had earlier blogged about the case surviving a motion to dismiss.) The court also determined that there was sufficient evidence to warrant the conclusion that an appropriate school official had notice of prior violations by the teacher and the school district responded with deliberate indifference by pressuring the student to change her story, failing to prevent the teacher from contacting the student, assigning his wife as the student’s substitute teacher and publicly displaying support for the teacher’s innocence. Additionally, some of the 14th Amendment claims survived a prior motion to dismiss and were retained under Section 1983 which was enacted to provide a private remedy for violation of federal law. Even though a state is not subject to suit under section 1983, a state officer can be sued in his official capacity. This means that although punitive damages cannot be awarded against a municipality, the municipality can be held jointly and severally liable and ultimately be held liable through section 1983. E.N. v. Susquehanna Tp. School Dist., 2011 WL 3608544 (M.D. Penn., July 05, 2011).

• A district court in Pennsylvania dismissed a high school student’s claim that North Allegheny School District officials permitted student-on-student harassment and failed to remedy a sexually hostile environment where the plaintiff was raped by a classmate in the school parking lot during school hours. Taking a narrow view of the requirement that school officials have actual notice of harassment – a view that conflicts with other courts’, see, e.g., Williams v. University of Georgia (institutional liability could be premised on university’s failure to respond to actual notice of football player’s sexual assault at a prior institution)-- the district court determined that notice of two prior incidents of sexual assaults filed by other high school students against the harasser did not constitute actual notice of sexual harassment of the plaintiff. Once school officials were aware of the assault, they took immediate action, thus insulating themselves from institutional liability for peer harassment under Title IX. Additionally, though the court dismissed the plaintiff’s claims for failing to sufficiently allege notice and deliberate indifference, it did emphasize that the harasser’s the repeated requests throughout their high school education that the plaintiff perform sexual acts upon him could qualify as sexual harassment. The fact that the plaintiff had consented to sex acts with the harasser in the past does not necessary preclude a jury from finding that the solicitation of those acts is “unwelcome.” Doe ex rel. Doe v. North Allegheny School Dist., 2011 WL 3667279 (W.D. Penn., Aug. 22, 2011).
  
  

Sexual Harassment Roundup

Federal courts have recently issued several decisions in Title IX cases involving allegations of sexual harassment. I am grateful to Western New England law student Shiona Heru for helping me prepare these case summaries!

• The Fifth Circuit Court of Appeals affirmed a lower court’s decision to dismiss a harassment case against a school district in Texas, calling it “petty squabble, masquerading as a civil rights matter.” Drawing a distinction between sexual harassment, which is covered by Title IX, and generic bullying, which is not, the court refused to consider incidents arising out of dispute between cheerleaders, in which one female student allegedly spanked the plaintiff’s butt, spread rumors that plaintiff was pregnant and had hickies, could not be viewed as harassment motivated by the victim’s sex. Also, in addressing the plaintiff’s claim that the school district’s failure to notify the Title IX coordinator constituted deliberate indifference, the court made it clear that ineffective responses to harassment do not establish deliberate indifference. Sanches v. Carrollton-Farmers Branch Independent School Dist., 2011 WL 2698975 (5th Cir. Jul 13, 2011).

• A federal court in Wisconsin rejected a school district’s attempt to dismiss a sexual harassment case involving a seventh grade student who is alleging that school officials failed to protect her from extensive verbal and physical abuse by four fellow classmates. The most egregious acts alleged included three consecutive attacks by two of the students who repeatedly hit the plaintiff with spiked track shoes resulting in the approximately 38 puncture wounds on the plaintiffs head, as well as an incident where two students beat her with a three-foot long tree limb which resulted in bleeding, lacerations, welts, bruising, emotional trauma, permanent scarring and severe bruising of several vertebrae. When the parents of the plaintiff requested that the plaintiff be permitted to attend another school, the school district refused and would not remove her harassers from her classes. The court considered these allegations, if proven true, to constitute deliberate indifference that could thereby subject the school district to liability under Title IX. Doe v. Galster, 2011 WL 2784159 (E.D. Wis. Jul 14, 2011).

• A federal court in California refused to dismiss a case filed by a high school student who alleged she had endured severe sexual harassment by a school counselor. Specifically, the plaintiff had alleged that the counselor’s behavior over the course of six months, which included sexually suggestive comments, inappropriate physical contact and unwarranted monitoring, rendered the district liable under Title IX and other law. Though the district court dismissed those portions of the plaintiff’s claim based on conduct that took place prior to the plaintiff’s notifying the school of the counselor’s conduct, it did accept that the plaintiff’s allegations of deliberate indifference were specific enough to withstand a motion to dismiss claims arising from conduct that occurred after the plaintiff notified officials. Lilah R. ex rel. Elena A. v. Smith, 2011 WL 2976805 (N.D. Cal., Jul. 22, 2011).

• A federal district court in New Jersey dismissed a sex discrimination and harassment case filed by a 22-year old male student against his undergraduate institution, the New Jersey Institute of Technology. The court found that the plaintiff’s selective enforcement claim, alleging that NJIT’s actions were motivated by gender, was flawed because he failed to demonstrate that his circumstance was sufficiently similar to a female student’s complaint where she reported a threatening comment made by the plaintiff. The court also dismissed the student’s sexual harassment under Title IX because his complaint did not include specific allegations that the institution had notice of the harassment he was facing from his peers, or that it responded to that harassment with deliberate indifference. Tafuto v. New Jersey Inst. of Technology, 2011 WL 3163240 (D.N.J., Jul. 26, 2011).

Eighth Circuit Affirms Jury's Dismissal of Gay-Slur Harassment Case

Earlier this month, the Eight Circuit Court of Appeals affirmed the a jury's dismissal of a Title IX harassment case against the Fayetteville (Arkansas) School District (earlier posts here, here, and here). The plaintiff, William "Billy" Wolfe sued the district to challenge their response to harassment that included anti-gay epithets by his peers. After a trial, the jury decided that as a matter of fact, the anti-gay name-calling was not motivated by Wolfe's perceived sexual orientation or any gender nonconforming behavior, and therefore could not be addressed by Title IX. The school district presented evidence that the students who harassed Billy were retaliating against him for bullying someone else, which allowed the jury to label this an instance of generic bullying rather than sexual harassment.



Wolfe's appeal challenged the language of the jury instructions, which required evidence that the harassers were targeting Wolfe because they perceived him to be gay or gender-nonconforming, in order to find in his favor. Wolfe argued that the jury should have been given broader leeway to find in his favor, including based on a finding that his harassers spreading of false rumors about his homosexuality in order to "debase his masculinity." But citing Supreme Court and other court decisions that emphasize Title IX's application to discrimination because of sex, the appellate panel rejected Wolfe's argument that Title IX applies when the means of harassment are linked to gender when the motive is apparently not.

School District with Sexual Orientation "Neutrality" Policy Targeted by Lawsuit and Investigation

The Anoka-Hennepin School District is the only district in Minnesota with a curriculum policy that requires teachers and staff to remain "neutral" on sexual orientation issues, deferring instead to students' "family homes, churches, and community organizations" to disseminate attitudes and information about homosexuality.

Two major civil rights organization, the National Center for Lesbian Rights and the Southern Poverty Law Center, have sued the district on behalf of LGBT student plaintiffs who experienced harassment and discrimination at Anoka-Hennepin schools. They argue that the neutrality policy amounts to gag-order that contributes to a hostile environment for LGBT students by rendering teachers ineffective at dealing with LGBT harassment when it occurs and at laying a foundation of inclusion and appreciation for diverse sexual orientations that could prevent harassment of LGBT students in the first place. They argue that the policy singles out LGBT students for exclusion in violation of the federal Constitution's Equal Protection Clause, Title IX, and the Minnesota Human Rights Statute.

Meanwhile, the Justice Department and the Department of Education's Office for Civil Rights are investigating allegations that Anoka-Hennepin School District is responsible for bullying and harassment motivated by students' failure to conform to gender stereotypes in violation of Title IX. Four students have committed suicide in recent years in apparent reaction to such harassment, though reports suggest it is not clear whether suicides or the district's sexual orientation "neutrality" policy are part of the investigation.

How Anoka-Hennpin's policy fares in court and in this government investigation could affect other states with restrictions on teaching about homosexuality. Reportedly, these states include Alabama, Arizona, Louisiana, Mississippi, Oklahoma, South Carolina, Texas and Utah, while Tennessee considered such legislation earlier this year.

Settlement Follows OCR Investigation of Anti-Gay Bullying and Suicide

In January, we blogged that the Department of Education's Office for Civil Rights had undertaken an unprecedented investigation by agreeing to look into charges that a school district failed to protect a middle-school student from anti-gay bullying that resulted in the student's suicide. Today OCR announced that the school district, Tehachapi Unified in California, has agreed to a settlement in response to OCR's finding that the school district was in violation of Title IX. Specifically, OCR determined that the student, Seth Walsh, was targeted for his "nonconformity with gender stereotypes, including his predominantly female friendships and stereotypically feminine mannerisms, speech and clothing." Additionally, the harassment was severe and pervasive, and that the school officials knew about it and did not adequately respond.

Under the terms of the settlement, the school district has agreed to a number of reforms, including revision of its harassment policies to address gender-based harassment, better training and education for its students, teachers, administrators, a survey assessment of the school climate regarding harassment, and responding to the climate through measures determined by consultation with an advisory committee, of administrators, students and parents.

These settlement terms are in my opinion are not so much punitive as simply "best practices" for prevention of bullying and harassment. Other school districts should not wait for a situation to escalate into a tragedy and government intervention before taking this list on themselves.

Law Review Article Addresses School Officials' Individual Liability Post-Fitzgerald

An article in the recent issue of the Wisconsin Journal of Law, Gender and Society examines the Supreme Court's 2009 decision in Fitzgerald v. Barnstable School Committee, which held that Title IX does not preclude a concurrent claim for Equal Protection violations under 42 U.S.C. 1983. The author, attorney Jennifer Kirby Tanney, explains that one potential consequence of this ruling is that school officials may be held individually liable for violations of Title IX, including in the peer harassment context. This is because while Title IX only covers institutions and not individuals, the 1983 remedy allows plaintiffs to sue individual defendants unless immunity applies. Tanney argues, however, that while the Court was right to hold that Title IX does not preclude relief under 1983 as a general matter, the Court should not in future cases extend this holding to allow for the individual liability of teachers and administrators, a consequence she argues that Congress did not intend.

For more see: Jennifer Kirby Tanney, A Back Door to Individual Title IX Liability? The Implications of Fitzgerald v. Barnstable School Committee on the Liability of Teachers and Administrators for Peer-to-Peer Harassment, 26 Wis. J. Law, Gender & Soc'y 23 (2011).

Dept of Ed Letter Supports Gay-Straight Alliances

Yesterday, the Department of Education circulated a "Dear Colleague" Letter to remind and apprise elementary and secondary schools of the government's position that schools must provide equal access and support to student clubs formed around shared interest in sexual orientation discrimination, namely, gay-straight alliances (GSAs). The Department's interpretation is not rooted in Title IX, however, whose prohibition on sex discrimination would seemingly not apply to viewpoint discrimination on the basis of sexual orientation. Rather, the Department rooted its interpretation in another law, the Equal Access Act. Congress passed this law in 1984 because it was concerned that schools were not allowing religion-based student groups meet on campus. But it applies to all student groups. As the letter explains,

The general rule, approved by the U.S. Supreme Court, is that a public high school that allows at least one noncurricular student group to meet on school grounds during noninstructional time (e.g., lunch, recess, or before or after school) may not deny similar access to other noncurricular student groups, regardless of the religious, political, philosophical, or other subject matters that the groups address.

Of course, a school wishing to deny access to a GSA may choose to have no extracurricular clubs at all, as a Utah school district once did. But the Department of Education's letter urges schools to consider the role of such clubs in fostering the kind of welcoming and supportive atmosphere that can be an antidote to the bullying crisis which has claimed several gay students' lives.

Calling all Law Professors' Papers on Harassment and Bullying

This is a call for papers on the application of Title IX to bullying and harassment in schools. Selected papers will be presented at the American Association of Law Schools' annual meeting in January and published in the Western New England Law Review.

Title IX, the federal law prohibiting sex discrimination in federally-funded educational institutions, turns 40 years old in 2012. At the 2012 Annual Meeting of the AALS in Washington D.C., the Section on Education Law and the Section on Sports and Law, with a co-sponsorship from the Section on Sexual Orientation and Gender Identity Issues, will sponsor an extended program to look at the current state of Title IX’s application to a variety of issues including bullying and harassment, the subject of this call for papers.

In 1999, the Supreme Court confirmed Title IX’s application to peer harassment and defined the scope of liability for educational institutions that fail to respond appropriately to known occurrences and risks. Yet recent instances of severe sex- and gender-based harassment, in particular those related to the victim’s later suicide, have raised questions about both schools’ and the law’s effectiveness and preventing such abuse.

We are soliciting proposals for papers addressing the application of Title IX to bullying and harassment, including but not limited to: Title IX’s application to harassment motivated by the victim’s perceived sexual orientation or gender identity; judicial decisions applying the Court’s deliberate indifference standard for institutional liability; harassment contexts that have proven particularly challenging for schools and universities, such as online bullying and sexual abuse by and among student athletes; and the role of public enforcement, including the effectiveness of recent guidance from the Department of Education addressing institutional response to sex-, gender-, and sexual orientation-based bullying and harassment and sexual violence and abuse.

Deadline Date for Submission: August 1, 2011.

Proposal Requirements: There is no requirement as to the form or length of proposals.

Eligibility: Faculty members of AALS member and fee-paid law schools are eligible to submit papers. Foreign, visiting and adjunct faculty members, graduate students, and fellows are not eligible to submit.

Selection: Papers will be selected after review by a joint committee consisting of members of the Section on Education Law, the Section on Sports and Law, and the Section on Sexual Orientation and Gender Identity Issues.

Presentation and Publication: Accepted papers will be included in a symposium published in the Western New England Law Review. One or more papers will also be selected for presentation during the Sections’ joint program at the AALS Annual Meeting. Program participants will be responsible for paying their annual meeting registration fee and expenses.

Contact for submission and inquiries:

Professor Erin Buzuvis
Western New England University School of Law

ebuzuvis@law.wne.edu

413-782-1405

Alleged abuses by Florida high school soccer coaches

When I started reading this story about alleged abuses perpetuated by three coaches of a girls' soccer team in Florida, I thought it was an Onion-like piece. Then I realized that in Florida it is not so unusual, perhaps, to have a high school named Citrus High School. But the allegations agains these coaches certainly seem so over the top that I wondered still.
But the complaint is legitimate. (As in the complaint has been filed, not that the allegations have been proven true at this point.) But the details are a little confusing. Here is what I have garnered thus far:
1. Some parents and players were concerned over the behavior of three male coaches who worked with the girls' JV soccer team at Citrus High School. This behavior included one coach who liked to watch the girls shower and who pulled down the pants of a varsity player, and another coach who made comments about his genitalia as well as that of his players.
2. Said parents and students made a complaint to the coaching staff and the District School Board of Citrus County. The district suspended without pay the coach who made the inappropriate comments during its investigation. They also reprimanded him.
3. After the invesitgation was complete, the girls who had complained feel they were retaliated against. They say they were made to feel unwelcome. Their families were threatened with lawsuits by the coaches' lawyers. And they allege the coaches asked the district to expel two of them because they allegedly live outside the Citrus County School District.
4. This has led to the current lawsuit against the district school board. The family is asking for an injunction (against the expulsion I would assume) and costs and damages for Title IX violations.

I suspect some of the details got muddled in the reporting of this story and in my re-reporting of it. As we find out more, we will certainly add/correct.

Court Dismisses Sexual Harassment, Retaliation Case Against Hofstra

Last month, a federal court in New York awarded summary judgment to Hofstra University, dismissing claims of sexual harassment and retaliation that had been filed by Lauren Summa, former student manager of the football team. Summa, you’ll recall from prior posts, alleged that she was sexually harassed by members of the football team on bus rides to away games and in other contexts. She also claimed that she was not rehired for the manager position or for a grad assistant position elsewhere in the university as retaliation for complaining about the incidents to the coach and others.

The court analyzed Summa’s sexual harassment claims under Title VII as well as Title IX, after concluding that as a student manager she was an employee within the meaning of the employment discrimination law. The court determined that several of the events Summa included in her description of a “hostile environment” consisted of “gender neutral” harassment -- that is, not motivated by her sex -- and thus did not qualify as sexual harassment. For instance, the court described an incident when football players holding shut the door while she was in the bus bathroom as “boorish” and “immature,” but not motivated by sex. Also, the screening of a movie with sexual themes on the team bus did not count as sexual harassment because there was no evidence that it was shown to target Summa. The fact that players responded to Summa’s complaint about the movie (which prompted the coach to turn it off) by shouting “we want boobies” and that one of them yelled at Summa to “sit down and shut … up,” while gender-motivated, did not “by itself” evidence of a severe and pervasive hostile environment.

As my employment discrimination students know well, there’s a lot of subjectivity in the “severe or pervasive” standard in sexual harassment law. Had I been the judge, I would have likely viewed Summa being physically entrapped in the bathroom of a bus full of hostile football players as not only severe, but also gender-related given that none of the men on the bus were apparently subjected to that kind of intimidation. Moreover, while the court concludes that Hofstra responded appropriately to the incidents of harassment that Summa reported (for example, the football player who yelled at Summa after the movie incident was suspended from the team by operation of the coach’s third strike policy) there is no indication that the coaching staff addressed the bus bathroom incident or the “we want boobies” chant which also would have rated with me as evidence of hostile, sexual harassment.

For a variety of reasons, the court also rejected Summa’s claims that she was retaliated against by the University for complaining about the harassment she experienced in her position as student manager. According to the court, Summa did not demonstrate that the person in charge of hiring student managers had knowledge of her complaints, a required element for any retaliation claim. The court also accepted Hofstra’s articulation of a legitimate, nondiscriminatory reason for its decision to deny her a graduate assistant position, one relating to certain misstatements on her resume, which Summa did not demonstrate to be pretext of a retaliatory motive.

Decision is: Summa v. Hofstra Univ., 2011 WL 1343058 (E.D.N.Y. Apr.7, 2011).