School 's Response to Bus Harassment Didn't Violate Title IX

From 2000 to 2001, a kindergartener in Hyannis, Mass. was repeatedly harassed by a school bus bully. Every time she wore a skirt or dress to school, an older boy on the bus coerced her into pulling down her underwear and spreading her legs. The kindergartener eventually told her parents about this, and they told the principal. School officials began investigating the incident by interviewing students in order to identify the perpetrator. Later these officials proposes to the parents (the Hunters) the option of sending their daughter to school on a different bus, but the Hunters preferred that the school remove the perpetrator and hire a bus monitor. The school did not agree to this solution. Meanwhile, as the Hunters drove their daughter to school from the moment they learned about the situation, no further bus incidents occurred.

In 2002, the Hunters sued the school district for violating Title IX. Last week, the federal district court in Massachusetts granted the school district' motion for summary judgment. Recent Supreme Court precedent Davis v. Monroe County School Board of Education makes clear that schools may be liable for under Title IX for failing to address student-on-student sexual harassment. For liability to attach, the school must have actual knowledge of the harassment and must respond with deliberate indifference. In the First Circuit, a jurisdiction that includes Massachusetts, a school is deliberately indifferent if it fails to respond at all or fails to take additional steps when it learns that its initial remedial measures have failed. In this case, the school commenced a response as soon as it learned of the harassment. The parties will never know what the school would have done if this response proved inadequate, as the Hunters pulled their daughter off the bus: "A school system ought not shoulder liability based on speculation as to what might or might not have occurred had [the victim] returned to the school bus."

Unfortunately for the Hunters, the only way they could have won their case is if they had let their daughter ride the bus and more harassment occurred. But the bottom line for the court is that regardless of the reason, the harassment ceased, and with it any way to judge whether the school was deliberately indifferent.

Update: the citation of this case is Hunter v. Barnstable School Comm., 456 F. Supp. 2d 255 (D. Mass. 2006).