Appellate Court Affirms District Not Liable for Harassment on School Bus

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

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

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

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

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

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