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).