School District May Be Liable for Football Camp Harassment

A federal district court in California recently denied efforts of the Gustine (California) Unified School District to obtain summary judgment on Title IX claims stemming from peer harassment at a high school football camp. The plaintiff was a rising freshman at Gustine High School when he attended a three-day football camp coordinated by Gustine and another school. He alleges that while at camp, he was repeatedly subjected to physical and verbal abuse by upperclassmen. On the second day of camp, the upperclassmen held him down in the locker room, inserted a battery-operated air pump nozzle in his rectum, and then activated the pump for several seconds. Also, the harassers repeatedly called him homosexual epithets, grabbed him while he was in the shower, flashed and slapped him with their genitals, and pummelled him with pillow cases stuffed with equipment at a camp-sanctioned "pillow fight."

For the school district to be liable under Title IX, the plaintiff must establish that the harassment was severe and pervasive, motivated by his sex and gender, known to the school district, and met with the district's deliberate indifference. The court denied summary judgment to the school district because it determined that a jury could find these elements present in plaintiff's case. First, the fact that the plaintiff was sexually assaulted and -- although he endured camp -- later withdrew from school would support a jury's conclusion that the harassment was severe and pervasive. Second, though the school district argued that the harassment was motivated by the plaintiff's status as a freshman, the court determined that a jury could find that it was instead gender-motivated based on the homosexual epithets that accompanied the abuse. Third, even though the plaintiff did not report harassment during camp, the court reasoned that a jury could find that the camp's head coach had notice of the danger the upperclassmen posed because he had caught the same boys attempting to air pump assault on another victim, causing the coach to confiscate the air pump but take no further action against the perpetrators. Last, the court found that the district's response might constitute deliberate indifference in the eyes of the jury. After camp, an assistant coach discovered the assault on the plaintiff and reported it to the principal, who suspended the perpetrators from school. Notwithstanding this severe response, if the jury agrees that the head coach had notice during camp that the plaintiff was in danger, his failure to take action against the perpetrator at that time may satisfy the deliberate indifference standard.

This case sheds important light on the hazing that goes on in many athletic programs. In addition to laws in many states thatprotect students against hazing and bullying, Title IX applies when such misconduct is also sexual in nature. School districts wishing to protect their students from harassment and avoid liablity must train their coaches and teachers to recognize and respond to incidencts as sexual harassment and not dismiss it as horseplay or condone it as team hazing.

Decision: Roe v. Gustine Unified Sch. Dist., 2009 WL 5184688 (E.D. Cal. Dec. 22, 2009).