Two Sexual Harassment Plaintiffs Survive Summary Judgments

Recently, in two separate cases, plaintiffs suing school districts for Title IX violations arising from sexual harassment were able to survive the schools' motions for summary judgment.

One case, in Iowa, involved peer harassment perpetrated by a group of middle school boys against a group of their female classmates. The school district argued that as a matter of law, the girls did not have a Title IX claim because the school responded to the girls' initial complaints by reprimanding at least one of the boys. However, the judge determined that a jury might nevertheless find that the school's reaction constituted "deliberate indifference," one of the elements for Title IX liability for peer harassment under Davis. The judge emphasized that a school's response need not curtail all harassment, but must be reasonable in light of the circumstances. In this case, the court pointed out that the Principal's reprimand of one of the offenders was not accompanied by an inquiry or investigation into the nature or the severity of the harassment that the girls had complained of. Nor did the school avail itself of the services of a professional investigator who had been designated under the school's harassment policy to investigate charges such as those in this case. After also concluding that the plaintiffs might also be able to establish the "notice" and "severe and pervasive" elements as well, he denied the school's motion for summary judgment.

The opinion is at: Bruning ex rel. Bruning v. Carroll Community School District, 2007 WL 1447753 (N.D. Iowa, April 17, 2007)

The second case involved a substitute teacher named Terry Wright. Students at an Autauga County, Alabama elementary complained one day that while he was their teacher, Wright touched them in ways that made them uncomfortable on their cheeks, hair and shoulders. The superintendent did not believe this to be improper sexual conduct, but was concerned enough to have Wright removed from the substitute teachers list for November. Unfortunately, the intermediate school principal was not aware of the new list and a few days later, on October 29, called Wright to substitute for a fourth grade class. On this day, 6 students in that class complained that Wright touched them, this time leaving no ambiguity as to whether the conduct was sexual in nature. Their parents sued. When the school moved for summary judgment, the judge had to decide whether on these facts (1) the first incident was sufficient to provide notice of the second, and (2) whether removing Wright's name from the sub list was an adequate response.

On the first question, the judge concluded easily that Wright's behavior in the first incident would "raise alarm bells to the average person and certainly should seemed suspicious to an educational professional like Butler [the Superintendent]." Butler would not have removed Wright's name from the list if Wright's behavior in the first incident was "benign." On the second question, the judge rejected the argument that removing Wright's name from the November sub list was an adequate response to protect against harassment in October.

The opinion is at: A.G. v. Autauga County Bd. of Education, 2007 WL 1412431 (M.D.Ala. 2007, May 11, 2007).

Barring an appeal, these cases are theoretically headed for trial. In the Alabama case, none of the facts seem particularly difficult to prove, so a settlement favorable to the plaintiffs seems more likely. In the Iowa case, the deliberate indifference question seems a closer call, so perhaps the parties will take their chances with a jury.