Courts Address Deliberate Indifference, Anti-Gay Harassment in Recent Cases

A federal district court in Massachusetts recently denied the City of Attleboro's motion to dismiss a claim that the school district violated Title IX by failing to adequately respond to bullying of the plaintiff by her high school peers. The plaintiff was targeted for persistent name-calling, including anti-gay slurs, over several years. The school district argued that the bullying was outside the scope of Title IX because it had nothing to do with the plaintiff's sex, but the court rejected that argument because, "sex discrimination can be based on sex stereotypes. Actionable stereotypes include those based on sexual orientation." The court also determined that a jury could decide that the school district's response to the bullying that it knew about amounted to deliberate indifference. Though the school district allegedly did more than nothing, it is possible to view its response as "clearly unreasonable" because it was inconsistent and failed to escalate as the problem persisted.
 Harrington v. City of Attleboro, 2018 WL 475000 (D. Mass. Jan. 17, 2018).

In another recent decision involving K-12, the Houston Independent School District did successfully dismiss a Title IX claim challenging the adequacy of its response to a report of sexual assault by a 12 grade boy of a 10th grade girl. (He placed her hand inside his pants, they disputed whether it was consensual.) The court determined that the allegations against HISD did not amount to deliberate indifference since it was not clearly unreasonable to defer to the investigation of the school district's police unit. Nor was the school district clearly unreasonable in limiting its response to what was in effect a no contact order, since that order was "mostly successful" in preventing future contact between the two students. Ayala v. Houston Indep. Sch. Dist., 2018 WL 496898 (S.D. Tex. Jan. 22, 2018).