Sexual harassment roundup

Here is a round-up of recent judicial decisions in Title IX cases involving sexual harassment and sexual abuse.

A federal district court denied a school district's motion to dismiss Title IX claims (as well as claims based on the ADA and Rehabilitation Act) filed by a student with Asperger's syndrome who was bullied throughout middle school and high school. Several instances of alleged harassment were sexual in nature, including the plaintiff having been taunted by other students to "touch my dick, you know you want to," having his pants pulled down, and several occasions where another student would grind his penis into the plaintiff's back.  These allegations, as well as the plaintiffs claim that his reports of harassment were ignored because of his sex and/or perceived sexual orientation, were sufficient allegations to satisfy the law's requirement that discrimination be "because of sex."  Galloway v. Chesapeake Union Exempted Village Schools Bd. of Educ., 2012 WL 5268946 (S.D.Ohio, Oct. 23, 2012).

In Arkansas, a similar case survived the defendant school district's motion for summary judgment on plaintiff's Title IX and other claims arising from a disabled student's ongoing sexual assault by another student in his alternative classroom. The plaintiff's evidence supports allegations that school district officials knew of the abuse and responded with deliberate indifference, precluding summary judgment.  Braden v. Mountain Home School Dist., 2012 WL 5183575 (W.D.Ark. Oct. 18, 2012).

The federal district court in D.C. dismissed a Title IX claim against Howard University, filed by a group of students who alleged they were sexually harassed by a university employee in the course of their work-study employment at the library. The plaintiffs' complaint does not allege that an appropriate university official had actual notice of the harassment that was going on, as those individuals named in the complaint as having notice of the harassment were not individuals with authority over the offending employee. Bello v. Howard University, 2012 WL 4893727 (D.D.C. Oct. 16, 2012).

An Oregon school district won a motion to dismiss plaintiff's claims in a peer harassment case involving the persistent bullying and harassment of a middle school boy, including an incident in the locker room where another male student who was partially clothed "thrust his groin" against the victim's.  The court determined that this was not actionable under Title IX because there was "not more than a scintilla of evidence" to support plaintiff's claim that the harassment was motivated by his perceived homosexuality and thus covered by Title IX's prohibition on discrimination "because of sex."  A.E. ex rel. Evans v. Harrisburg Sch. Dist. No. 7,  2012 WL 4794314 (D. Or. Oct. 9, 2012)

A high school student in New York did not sufficiently allege Title IX violations by her school district in a case involving ongoing molestation outside of school by student in the same school, as well as ongoing teasing and harassment by other girls.  The court said that allowing the molesting student to remain in the same lunch period as the victim was not an example of "deliberate indifference," since she was not in danger of being molested in the lunch room.  As for the harassment by other girls, the complaint did not support the plaintiff's claim that the harassment was "because of sex" rather than for other reasons.  The fact that some sex-related epithets were used by the harassers -- e.g., "whore" and "bitch" -- did not reveal their gender animus, given that they used other, non-gendered epithets as well. HB v. Monroe Woodbury Cent. School Dist., 2012 WL 4477552 (S.D.N.Y., Sept. 27, 2012).

A Colorado school district is not liable for sexual abuse and sexual harassment committed by a teacher against three female student victims because school officials did not have notice that the teacher posed such a threat. The plaintiffs argued that the teacher had been the subject of complaints during a stint, 6 years prior, as a student teacher at another high school in the same school district. However, the court determined that those earlier complaints -- which involved inappropriate contact and phone calls that made female students uncomfortable -- were too distant and too dissimilar from the present abuse to put school officials on notice that this teacher posed a threat of abuse. The court reached this conclusion about dissimilarity based on the fact that the earlier complaints did not expressly allege inappropriate contact that was sexual in nature. The court did not seem concerned that whatever the nature of the earlier complaints, they were serious enough to warrant the student-teacher's dismissal from his field placement, suggesting that officials at the first high school thought he was a threat.  Doe No. 1 v. Boulder Valley School Dist. No. Re-2, 2012 WL 4378162, (D.Colo. Sept. 25, 2012).

Nor was an Alabama school district liable for an incident in which a janitor inappropriately touched a female student in the hallway.  The plaintiff alleged that the school district had actual notice of the threat posed by this janitor given past complaints of sexual harassment filed by other teachers and employees at the school.  The court reasoned, however, that because these complaints were filed by employees, not students, school officials were not on notice that the janitor posed a threat to students. E.S. v. Daleville City Bd. of Educ., 2012 WL 4378190 (M.D.Ala. Sept. 25, 2012).