Pregnancy Discirmination Lawsuit Filed in New Mexico

Last week the ACLU filed a federal lawsuit on behalf of an eighth-grade student at Wingate Elementary School in Fort Wingate, New Mexico, for discriminating against the plaintiff, Shantelle Hicks, on the basis of her pregnancy in violation of Title IX and constitutional law. According to the complaint, school officials initially told Shantelle. that she could no longer attend school after she told them she was pregnant. They encouraged her to enroll in an alternative high school with a program for pregnant teens. However, when Shantelle asserted her right to remain in school -- Title IX regulations allow students to enroll in special programs for pregnant students, but only on a voluntary basis--school officials endeavored to drive her out by humiliation. At an assembly of the entire middle school, school officials announced Shantelle's pregnancy, which had been private matter until then.

The complaint alleges violations of Title IX arising from both the school's decision to exclude Shantelle from Wingate and from the announcement of her pregnancy as retaliation for asserting her rights to remain in school. The complaint also alleges that the school's disclosure violated her due process right not to have private information revealed, as well as violating her First Amendment right by attempting through retaliation to deter her from asserting her right to continue to attend school. The lawsuit seeks damages from emotional harm, declaratory relief, and an injunction requiring school officials to attend training about pregnancy discrimination.

Wingate Elementary is a boarding school run by the federal Bureau of Indian Affairs.

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).

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).

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).

Single-Sex Education Cancelled in Tacoma, Challenged in Missouri

A school district in Tacoma, Washington recently rescinded a single-sex education program that had segregated sixth grade students by sex for classes in all core subjects at Jason Lee Middle School. This change in course occurred after the state of Washington's Office of the Superintendent of Public Instruction informed the district that state education law actually prohibits single-sex education outside the context of health, physical education, and choir. The district reportedly believed that its program complied with federal Title IX regulations that broadened single-sex education, and did not realize that state law was more restrictive in this regard. However, I'm not sure this program would have survived a challenge even under Title IX, given the regulation's requirement that districts make coed alternatives available, provides students and parents with a choice, and limit single-sex education to those that are "substantially related" to an "important objective." Such a broad scope encompassing all the core subjects in an entire middle school grade definitely raises questions about its compliance with both of those requirements.

Speaking of challenges to single-sex education programs under Title IX, the ACLU has requested that the Adrian School District, outside Kansas City, Missouri, curtail its single-sex education program that offers segregated math and "communication arts" classes in the 6th, 7th, and 8th grade. The ACLU cited growing evidence challenging the efficacy of single-sex education, which calls into question the ability of single-sex education to truly promote an important education objective as required by Title IX regulations or the Equal Protection Clause.

Pittsburgh School District Ends Single-Sex Classes

The superintendent of the Pittsburgh Public Schools announced her recommendation to end single-sex classes at George Westinghouse Academy, after becoming "uncomfortable" with how staff where being trained to rely on gender stereotypes.

The ACLU and Women's Law Project had reportedly threatened to sue the district over its plans to convert George Westinghouse, which educates grades 6-12, into an entirely sex-segregated institution, a move that exceeds the scope of single-sex education allowed under Title IX regulations and that was justified by an erroneous conclusion that “research solidly indicates that boys and girls learn differently.” ACLU's press release on the matter also sheds some light on what might have been making the superintendent uncomfortable: teachers were apparently being trained to teach boys in ways that emphasize “characteristics of warrior, protector, and provider” and to provide “space/time to explore things that young women like [including] writing, applying and doing make-up & hair, art.”

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).

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.

5th Circuit Issues Decision in Single-Sex Education Case

The Fifth Circuit Court of Appeals issued a decision today in the case challenging the Vermilion (Louisiana) School Board's decision to institute single-sex classes at Rene A. Rost Middle School. The parent of female students who had been placed in all-girls classes in core subjects sued the school district, challenging the constitutionality of the single-sex classes under the Equal Protection Clause. The plaintiff also challenged the classes' validity under Title IX, which generally prohibits schools excluding students from any class or activity based on sex, but provides a narrow exception for single-sex classes that promote an identified educational objective, are based on genuine justifications, not generalizations and stereotypes, and which provide students the option to select co-ed alternative instead.

The district court had earlier denied the plaintiff's request for a preliminary injunction and allowed the single- sex classes at Rost to continue. Though the district court acknowledged that Vermilion's single-sex classes were justified by experimental data that had been falsified by the principal (an issue that was the subject of this prior post), the court reasoned that because Vermilion's discrimination was not intentional, it did not violate the Equal Protection Clause. It did not consider the plaintiff's alternative argument under Title IX.

Today's decision affirms the lower court's denial of the injunction, reasoning that it is too late in the school year to order an immediate change. Significantly, however, the appellate court corrects the lower court's misapplication of the Equal Protection standard. Rather than intentional discrimination, the appropriate standard is intermediate scrutiny -- when state actors classify based on sex, they must have an "exceedingly persuasive justification" for the classification. Because it's hard to imagine a court concluding that the principal's falsified justification was a "persuasive" one, I think this aspect of the decision makes it much more likely that the plaintiff will prevail on the merits when the question of the constitutionality of Vermilion's single-sex classes returns to the district court. Moreover, the appellate court faulted the lower court for failing to consider plaintiff's argument that the single-sex classes violate Title IX, so this too will provide alternate grounds for the plaintiff to prevail.

The appellate court today acknowledged that if Vermilion Parish curtails its single-sex classes, the litigation will be moot. If it continues, however, the case will proceed and the district court will analyze the constitutionality and statutory validity of its program under the correct standards of Equal Protection and Title IX.

Report ready for digestion in PA

Title IX consultant Peg Pennepacker finished her report on the gender disparities within Hazleton School District in Pennsylvania. We wrote about this situation just over a year ago. Interestingly, the reporting of the complaint about the lack (i.e. none) of middle school girls' sports in the winter seemed to be more focused on whether girls' basketball should be moved out of the spring season to its traditional winter season.
But the raising of the concern clearly triggered an investigation and brought Pennepacker into the situation. Her report goes a lot further than just winter sports, too. (Sometimes educational administrators are not very smart.) A large concern highlighted in the report seems to be the use of booster donations. Or at least that is what people are talking about. And it seems the ad-hoc committee, created in order to "digest" the report, is getting on the booster club issue immediately, suggesting that there be a district-wide booster club policy and that financial audits of booster clubs be conducted.
And I can see why a special digestion committee is necessary. Here are the rest of the items that "warrant action" in order to achieve Title IX compliance.

Increase number of participation opportunities.

- Improve equality in supply and condition of athletic equipment and supplies.

- Improve scheduling use of athletic facilities including locker rooms, practice and competition facilities.

- Re-evaluate team transportation and meal allocations.

- Recruit best-qualified coaches and offer coach training.

- Make publicity and promotional activities available to all groups.

- Improve game and practice scheduling.

- Re-evaluate access to training facilities and medical services

Sexual Harassment Litigation Roundup

It's time for another roundup of recent decision in Title IX sexual harassment cases:

A federal judge in Ohio refused to grant summary judgment to the Southwestern City School District so that a jury can resolve disputed facts about whether district officials knew and took proper action to protect a student from being sexually assaulted by another student who had assaulted her on the school bus earlier that year. The jury will also get to decide whether the plaintiff was suspended in retaliation for speaking out against the ongoing harassment. Evans v. Bd. of Educ, Southwestern Sch. Dist., 2010 WL 2889100 (S. D. Ohio July 20, 2010).

Another judge in the same district dismissed claims against the school district that, like the prior case, also involved sexual assault on the school bus. The court found that district officials responded appropriately when they learned that a 17-year-old high school student forced a 12-year-old seventh grader to perform oral sex on the bus, by suspended both students and assigning the perpetrator to another bus. Nor could the district be liable for the taunting and teasing the victim received at school after the incident, which the court said did not rise to the "severe and pervasive" standard required by law. However, the court ruled that the plaintiff could proceed with her claim that the school district's decision to suspend the plaintiff in response to another matter was actually retaliation for her complaints about the sexual harassment. Marcum ex rel. C.V. v. Board of Educ. of Bloom-Carroll Local School Dist., 2010 WL 2927235 (S.D.Ohio Jul 23, 2010).

Last, a federal judge in California granted a motion by individual teachers to dismiss claims that they knew about and failed to report sexually harassment that another teacher was perpetrating on a student. The court dismissed the claims against these teachers that were based on Title IX because the statute only supports institutional, not individual liability (The plaintiff's Title IX claim against the school district was not included in this motion to dismiss, and thus was not addressed this decision.) However, with respect to two of the teachers, the court found that the plaintiff could proceed with her claims that their failure to respond to the perpetrating teacher's sexual harassment violated the Equal Protection Clause, which does allow for individual liability. Similarly, the court acknowledged that the perpetrating teacher could have violated the plaintiff's Equal Protection rights as well, and gave her the chance to amend her complaint to include an allegation that the teacher's harassing treatment singled the plaintiff out because of her sex. Dyess ex rel. Dyess v. Tehachapi Unified School Dist., 2010 WL 3154013 and 2010 WL 3154083 (E.D.Cal. Aug 06, 2010).

Sexual Harassment Litigation Roundup

Here is a roundup of news related to Title IX cases involving sexual harassment and assault:

• A former student at Arizona State has sued the Board of Regents claiming that the university failed to adequately protect her from a rape that occurred at a fraternity house.

• A district court judge set aside a jury verdict in favor of a Michigan student, who had sued the school district over its response to other students' perpetration sexual and anti-gay harassment. The case had been reinstated by the 6th Circuit after the district court dismissed on summary judgment. But considering new evidence presented at the jury trial, the district court judge held that the harassment was not severe and pervasive, but typical of middle school students, and that the school responded adequately by investigating each incident of harassment and punishing the perpetrators. See Patterson v. Hudson Area Schools, 2010 WL 2670167 (E.D. Mich. July 1, 2010).
  

• A district court in Indiana dismissed a plaintiff's case stemming from peer harassment because there was no support for plaintiff's claim the abuse was motivated by his gender nonconformity, only his perceived sexual orientation (which is not covered by Title IX). Turpin v. Good, 2010 WL 2560421 (S.D. Ind., June 24, 2010).
  

• A district court in Illinois dismissed a case in which a student challenged the university's response to his complaints about a professor's weird and inappropriate statements about the plaintiff's hair (the professor said that his hair would be sexy on a lady, and that if the plaintiff was a lady, he would want to date him). The court held that this did not constitute harassment based on the plaintiff's sex. The court also considered the fact that the professor harassed male and female students equally to cut against the plaintiff's argument that the harassment was motivated by his sex. Milligan v. Bd. of Trustees, 2010 WL 2649917 (S.D. Ill. June 30, 2010).
  

• A district court in Wisconsin denied a university's motion for summary judgment in a case arising out of a resident advisor's alleged assault on the plaintiff, a student, in her dorm room at the University of Wisconsin-Parkside. The court agreed that the plaintiff's complaint contained sufficient allegations -- including that campus officials waited three days before calling the police -- that could allow a jury to find the university liability under Title IX. Albiez v. Kaminski, 2010 WL 2465502 (E.D. Wisc. June 14, 2010).
  

Falsified Data Justified Sex-Segregated Middle School

The ACLU continues to challenge the sex-segregated middle school in Vermilion Parish, Louisiana, having recently filed an appeal of the district court's refusal to issue a preliminary injunction against continuing to separate boys and girls in core curriculum and other classes. (See also our prior post here).

The ACLU's appellate brief is a fascinating read. The brief argues that the district court should have found a high likelihood of success on the merits (a key consideration in preliminary injunction analysis) because the Equal Protection Clause and Title IX require schools to have an "extremely persuasive" justification or "important objective" for treating boys and girls differently in the education context. Yet the only justification for the segregation at Rene Rost Middle School were results from a small-scale study conducted by Principal David Dupuis during the 2008-2009 school year, which we now understand to have been falsified and erroneous. Since touting that the segregated classes in the study produced higher graders and fewer disciplinary problems, Dupuis, who conducted the experiment as part of his doctoral dissertation, has admitted to including grades of students who were not part of the experiment in his findings in order to make the case that segregated had better report cards than co-educated students. It is also clear that he omitted the grades of students who were part of the experiment but who did not earn higher grades in the segregated classes. In fact, when these grades are factored in, Dupuis's experiment shows that grades decreased in segregated classes, despite his claims to the contrary. Dupuis also admitted to errors that belied his findings that disciplinary infractions decreased in sex-segregated classes.

Not only is this outrageous behavior on the part of the principal (I hope Nova Southeastern University, who awarded him an Ed.D., is paying attention to the academic fraud issue!), it clearly does not satisfy the legal requirements for different treatment on the basis of sex. When bogus claims of "findings" are stripped away, the only justifications for segregated classes that seem to remain are the tired old stereotypes and folk-beliefs about the differences between boys and girls.

ACLU Challenges Sex Segregation in Louisiana School

On behalf of parents of students at Rene A. Rost Middle School in Kaplan, Louisiana, the ACLU has sued the Vermilion Parish School District to challenge the sex-segregated classes there. According to the complaint, the district announced to parents over the summer that their children would be enrolled in sex-segregated classes. When parents who objected pointed out that that mandatory segregation was in violation of law, the district responded that it would replace it with a voluntary plan. However, under the voluntary plan, parents' only option for a coeducational environment was special needs classes (which were, apparently, full). The parents and the ACLU argue that this is still in effect mandatory segregation, as the coed option is not comparable to the single sex classes. They also argue that the single sex classes are not equal to each other, as the plan requires teachers to use different methods for boys and girls such as selecting books that "appeal to boys" for their classes and books that "appeal to girls" for their classes. The complaint maintains that the separate tracks "represent exactly the sort of sex stereotyping and discrimination that Title IX and the Fourteenth Amendment seek to prevent."

The ACLU challenged a similar comprehensive sex segregation at an Alabama middle school last year. The school district ended up agreeing to re-integrate its classrooms and to give the ACLU advance notice of future plans to experiment with single-sex education.

Court Reconsiders Severity of Single-Incident Harassment

Rarely do courts grants motions to reconsider prior rulings, but a federal judge in New York did so this week in the context of a peer harassment case. CG was a special needs student at a public junior high school in New York City. During computer class, she was assaulted by two male students, one who grabbed her breasts from behind and another pulled her pants down and touched her buttocks. The teacher, Mr. Raskin, was present in the classroom, but was ostensibly helping students at the front of the room during this incident, which took place at the back of the classroom. CG called out for help, but did not call to Mr. Raskin in particular. Eventually her friend pushed through the crowd of students who had gathered around and pulled the boys off of her. CG's friend reported the incident and the boys were suspended and then transferred out of school.

CG's guardian sued the City on her behalf, claiming that the school was liable Mr. Raskin's failure to intercede and stop the assault as it was happening. Last month, however, the judge dismissed this claim. He agreed that the a jury could find that he was aware of the situation and that his failure to act amounted to deliberate indifference, he held that it did not constitute "severe and pervasive" harassment because it only happened one time. In response to the plaintiff's motion to reconsider, however, the judge admitted that he overlooked cases judicial decisions -- as well as topical Department of Education guidance -- holding that a single incident of harassment may render a school district liable if it is "serious enough to have the systemic effect of denying the victim equal access to an educational program or activity." In other words, "severe and pervasive" goes to the effect that the harassment could reasonably be expected to have on the victim. It does not refer to the pattern of the harassing conduct itself. The "deliberate indifferent" element already takes that into account; where a teacher's failure to intercede in an ongoing assault could amount to indifferent, failure to intercede in namecalling may not unless/until that namecalling becomes a pattern.

Applying this standard, the judge reasoned that a jury could find that the assault on CG was serious and caused her emotional harm that impaired her access to education. This is a sensible result, in my view. The court was right to recognize that sexual harassment comes in many forms, and that the courts' concern about making schools liable for single incidents of harassment arises in the context of schoolyard taunts and teasing -- concerns not applicable when the manner of harassment is assault.

Decision is: TZ v. City of New York, 2009 WL 1794702 (E.D.N.Y., June 23, 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).

ACLU Settles With Sex Segregated Middle School

The ACLU backed off of its threats to sue Mobile County, Alabama, after the county agreed to stop its practicing of segregating the entire student body at Hankins Middle School by sex for all classes and activities.

Under the settlement agreement, elective classes and nonacademic activities (such as lunchtime) are immediately re-integrated. The county also agreed that as of next school year, all courses will be integrated and no school will institute any sex segregated programs for the next three years. For two years following that three-year moratorium, any plans to institute new single-sex programs must go to the ACLU in advance.

As we noted in earlier posts, Mobile's decision to segregate an entire middle school likely violated Title IX regulations, which allow experimentation with same-sex instruction but only where parents have notice and an opportunity to opt out. It was also almost certainly a violation of the Equal Protection Clause, since such broad-based segregation was not narrowly tailored to a persuasive justification. Parents were concerned, moreover, that single-sex classrooms were being used to teach kids "ideas about gender that come from the dark ages." For example, a language arts exercise for girls asked them to use as many descriptive words as possible to describe their dream wedding cake. The boys' assignment was to brainstorm action verbs used in sports.

Though single-sex classes are popping up all over, only Hankins Middle School had taken the drastic step of converting its entire school to a single-sex model. The ACLU's successful settlement will likely deter other schools from going to similar extremes. Perhaps it will even give schools pause before engaging in more limited experiments with single-sex education.

6th Circuits Reinstates Plaintiff's Anti-Gay Harrassment Case

The Sixth Circuit Court of Appeals recently overturned a lower court's dismissal of sexual harassment case against the Hudson Area (Michigan) Schools. The plaintiffs sued the school district on behalf of their son, DP, who had suffered ongoing harassment from sixth through ninth grade. This harassment began with teasing, name calling (such as "queer," "faggot," "fat," "pig," and "man boobs) and defacing of DP's property and his locker with homophobic slurs and suggestive drawings. One one occasion, someone broke into his gym locker to urinate on his clothes and stuff his shoes in the toilet. Finally, in ninth grade, DP was sexually assaulted by a fellow student and baseball teammate, LP, who forced DP into a corner, jumped onto his shoulders, and rubbed his genitals on DP's face and neck. Another teammate blocked the door so DP couldn't leave. Later, their coach warned the team about joking around "with guys who can't take a man joke" and let LP attend the team banquet one week later. (LP later plead guilty to criminal charges and was expelled.)

The school district argued (persuasively to the lower court) that it responded adequately to individual incidents of harassment. None of the students who received warnings and verbal reprimands bothered DP again. However, the Court of Appeals recognized that that school officials could still exhibit the requisite "deliberate indifference" on these facts. School officials could have realized that their approach -- dealing with harassment of DP one offender at a time -- was not stemming the tide of increasingly violent harassment and assaults more generally. And failure to take a different course of action in light of this realization might constitute an unreasonable response. As the court put it, "even though a school district takes some action in response to known harassment, if further harassment continues, a jury is not precluded by law from finding that the school district's response is clearly unreasonable." Moreover, it continued "[w]e cannot say that, as a matter of law, a school district is shielded from liability if that school district knows that its methods of response to harassment, though effective against an individual harasser, are ineffective against persistent harassment against a single student. Such a situation raises a genuine issue of material fact for a jury to decide."

This is an important clarification of the deliberately indifferent standard; it recognizes that while harassment can consist of discrete, isolated instances, addressing all harassing conduct as such may be unreasonable when doing so manifests indifference to a widespread, ongoing, systematic harassment by the victim's peers in general.

Decision is: Patterson v. Hudson Area Schools, 515 F.3d 438 (6th Cir. 2009).

Tis the Season

On the heels of news about the New York City girls' soccer season moving to fall comes another story about girls' sports in nontraditional season. In Hazleton, Pennsylvania, an unnamed coach approached the school board of directors about the lack of winter sports for seventh and eight grade girls could violate Title IX. Middle school boys can chose between basketball and wrestling, but girls have no winter sports at all. Most of the school directors seemed receptive to the coaches concerns, and are now considering whether to move girls basketball from spring to winter. The Hazleton schools would have to coordinate with other schools in their conference to ensure that there will be competition for the team.

But not all school officials were as concerned. When pressed about the apparently inequity of this schedule (which offers the same number of sports for boys and girls, but concentrates girls sports in the fall and spring), one of the school directors, Jack Shema, apparently got a little defensive, and inexplicably responded: "let them [girls] try out for football." What? Unless football is a winter sport in Hazleton (which I doubt) this is a total nonsequitur. Or, this response is just another incarnation of the familiar pattern, "Hegemonic masculinity of sport challenged. Man invoke football."

Settlement Will Force School District to Deal With Anti-Gay Bullies

The ACLU of Northern California announced today that it has reached a settlement with the Upper Lake Union School District, under which the district has agreed to undertake a list of protective measures designed to curb anti-gay harassment and discrimination.

ACLU's client is a middle school student named Robby who "can't remember a day at school when [he] wasn't called a faggot or gay." When Robby was beat up after gym class by classmates shouting "queer," Robby's parents got the ACLU involved. It does not appear that ACLU had to actually file a lawsuit to get the school district to agree to take remedial measures. This step was presumably not necessary because thanks to Title IX and California's anti-bully legislation, the district has a legal responsibility (not to mention a moral one) to take reasonable steps to protect students from anti-gay harassment.

Here is the list of things that the district agreed to do:

• Revise the parent/student handbooks to include the antidiscrimination and antiharassment policies and the process for filing a complaint;
• Designate an employee for each school to serve as the point person for school-based harassment;
• Provide LGBT sensitivity materials to staff and discuss incidents of harassment at staff meetings;
• Hire qualified trainers to educate students regarding the harmful effects of discrimination;
• Implement the Gay Lesbian and Straight Education Network's "No Name Calling Week" curriculum and other programs that raise awareness about discrimination and homophobia; and
• Support the maintenance of a Gay/Straight Alliance club at the middle school.

If you're an activist, feel free to copy and paste these handy bullet points into your own list of demands!