11th Circuit Reverses Summary Judgment in "Rape Bait" Case

In 2013, we blogged about a district court decision that a school district in Alabama could not be liable under Title IX for its participation in a teacher's aid's plan to use an eighth grade girl as, essentially, bait to catch a habitually-offending male student "in the act" of soliciting female classmates for sex. The plan called for the female student to agree to the male student's proposal to meet in the bathroom, where officials would intervene before any sexual assault occurred. However, no timely intervention occurred and the female student was raped.  We noted with alarm the district court's exceedingly narrow application of the deliberate indifference standard, since there was a genuine factual dispute that the assistant principle was aware that a female student was under a serious threat of sexual assault and did nothing to stop it.

Thankfully, this decision has been reversed on appeal.  Last week, the Eleventh Circuit Court of Appeals ruled that there was enough evidence to warrant a trial on the crucial elements for institutional liability, i.e., actual notice and deliberate indifference.  There were enough facts in evidence that a jury could potentially find that shool district officials had actual notice of the threat posed by male student.  Namely, the school board admitted that officials knew of reports that the male student had harassed and assaulted other female students in past, and while it was disputed whether the Assistant Principle knew about the sting operation in progress, a jury could potentially find that this was so.

The court also thought there was enough evidence that a reasonable jury could find that school officials were deliberately indifferent -- both to the threat of rape and in their response to the rape after it occurred.  Not only was deliberate indifference suggested by officials' failure to intervene in the sting operation, but also, the court noted, its inadequate teacher training on sexual harassment, its ineffective disciplinary policies and record keeping practices, and the fact that the rapist himself was sometimes unsupervised during his in-school suspension, and the principal's failure to revise any policies after the rape had occurred. 

The plaintiff's Title IX claim will be allowed to proceed to trial.

The court also reinstated the plaintiff's constitutional claims against the principal, assistant principal, and teacher's aid as individuals.

For some other commentary about the case see here. 
For a copy of the decision, see here, or:

Hill v. Cundiff, 2015 WL 4747047 (11th Cir. Aug. 12, 2015)