Fortunately, a district court disagrees with the school district's absurd suggestion that nonconsensual anal penetration is not sexual in nature. In denying the school district's motion for summary judgment, the court agreed that a jury could find that the incident satisfied all of the elements for institutional liability for discrimination under Title IX. First, the court agreed with the plaintiffs that "inserting (or attempting to insert) a finger in another person's rectum or vagina reasonably could be construed as a 'sexual' act that is a severe violation of an individual's body and personal privacy." The court next determined that the plaintiffs had introduced sufficient evidence for a jury to conclude that school officials had actual notice that the incidents had occurred, since the parents reported the them first to the basketball coach, then to the principal, and then to the Director of Schools. Finally, the court found ample evidence of the school's deliberate indifference, characterizing the school's response as "foot-dragging in violation of school policy, which endured for months and at multiple administrative levels."
The court makes clear that the school was not on notice of the team's initiation practices prior to the plaintiffs' reports, and thus cannot be liable for damages arising from the cornholing itself. However, its indifferent response (which included the assistant principle telling the girls to "keep the issue quiet" to avoid giving their high school "a bad name") to the matter once it had been reported subjects the school to potential liability for damages that the girls endured from that point on. To this end, the court noted that the sisters "faced the prospect of additional harassment or at least the indignity, intimidation, and justifiable discomfort of being forced to play alongside their alleged harasser and under the coach/father who seemed to be protecting her."
Additionally, the court found sufficient evidence in support of the plaintiffs' retaliation claim for that to proceed to trial as well.
Unless the parties settle first, the case will proceed to trial, and a jury will determine whether the Board of Education is liable and for how much.
Doe v. Rutherford Cnty., Tenn., Bd. of Educ., 2014 WL 4080163 (M.D. Tenn. Aug. 18, 2014).