Litigation Roundup: School Districts Lacking Notice

In several recent cases, courts rejected claims that school districts were liable for sexual misconduct by employees or students due to lack of notice.  Here are case summaries:

The Fifth Circuit Court of Appeals reversed a district court's judgment in favor of a plaintiff who sued the South San Antonio Independent School District after having been molested by the vice principal, later principal, of the elementary school he attended.  After the jury awarded the plaintiff $4.5 million, the school district moved to dismiss the case as a matter of law and appealed an adverse ruling on this motion to the appellate court.  A school district is liable for sexual misconduct of its employees if someone with authority to take corrective action has notice of the misconduct and responds with deliberate indifference. In this case, the plaintiff argued that because the perpetrator was the vice principal  -- someone with authority to take corrective action -- then the notice requirement was satisfied.  However, the Fifth Circuit disagreed, concluding that the perpetrator's knowledge of his own misconduct does not qualify. The notice requirement is meant to limit school district liability to only those cases where those in authority ignore sexual misconduct that they know is going on, and one does not "ignore" one's own misconduct. Put another way, the court reasoned that implicit in the notice requirement is a requirement that the person to whom notice is given is a person who does not already know that the misconduct is going on.  Otherwise, there is potential automatic liability every time someone with authority is the perpetrator.
Decision: Salazar v. South San Antonio Indep. Sch. Dist., 2017 WL 2590511 (5th Cir. June 15, 2017).

The Eleventh Circuit Court of Appeals affirmed a lower court's decision to dismiss Title IX claims filed against Bibb County (Georgia) school district stemming from the rape of a female special education student, the plaintiff in the case. The facts are terrible: A male student walked into the plaintiff's classroom and told the teacher that another teacher wanted to see the plaintiff. The teacher let her go with him, and he brought her to the bathroom where she was gang-raped by seven male students, none of whom had ever been reported for any kind of sexual misconduct.  For the district to be liable for the rape, however, there must be some prior misconduct that put school officials on notice that the plaintiff was at risk for what happened.  Considering the appeal, the Eleventh Circuit affirmed that it is not necessary for a plaintiff to show that she herself had reported prior incidents, nor that the perpetrators themselves had been the subject of such reports.  Still, however, there must be a reasonable enough similarity between the prior incidents and the plaintiff's rape to put school officials on notice, and the appellate court agreed with the district court that such similarity was lacking here.  There had been prior incidents of sexual assault in the high school; one of which did not involve students in the special education program and so could not serve as notice that students participating in that program were at an elevated risk.  The other did involve special education students, but the circumstances were different as the students involved had been left alone unsupervised in a classroom, whereas here, the perpetrators used deceit to extract the victim from her classroom.  Therefore, there was nothing on which to base a claim that the school district should have acted to prevent the rape that occurred here.
Decision: Jane Doe v. Bibb County Sch. Dist., 2017 WL 2240825 (11th Cir. May 22, 2017).

The parents of an eighth grader can not pursue their lawsuit against the Independent School District of Delaware County (Oklahoma) that stems from a romantic and sexual relationship that occurred between their ninth-grade daughter and her basketball coach, an employee of the district. The federal district court in Oklahoma granted summary judgment to the district on the parents' Title IX claim because their were no allegations that the school district was indifferent to the coach's sexual misconduct that was known to appropriate school officials. Once the principal learned of a rumor that the coach and the student had been locked in a room together, he and the superintendent investigated and quickly got corroboration by the student. The coach was suspended immediately and eventually terminated. The parents argued that school officials actually had notice that this coach posed a threat of sexual misconduct to his players based on prior complaints that a couple of parents had made against the coach.  However, these complaints, which were investigated, did not involve conduct that was predictive of the sexual misconduct that occurred in this case. There had been a complaint that the coach sometimes texted individual players, and sometimes talked about butts in practice. But the investigation revealed that the texts and the comments were related to basketball and reasonably handled by an order to the coach not to text individual players any more. In the absence of deliberate indifference to sexual misconduct that was known or foreseeable to school officials the school district was not liable for damages arising from the the coach's sexual misconduct with the plaintiffs' daughter.
Decision: Callihan v. Indep. Sch. Dist. No. 1., 2017 WL 2783990 (N.D. Okla. June 27, 2017).

Sexual Harassment Roundup: K-12 Cases

Here are summaries of some recent judicial decisions involving Title IX claims against school districts for failing to adequately respond to reports of sexual harassment and abuse.

A federal court in Connecticut refused to grant summary judgment to a school district in a case stemming from a ninth-grader's repeated sexual abuse of the sixth-grade plaintiff.  The abuse itself occurred outside of school, but the plaintiff alleges that the school district was deliberately indifferent to the fact that the abuse and her reporting of it subjected her to continued harm while at school. For one matter, the school did not take steps to expel the 9th grader, which created the opportunity for the plaintiff to encounter him in space that the middle school and high school shared. Additionally, the school did not respond to repeated requests from the plaintiff's parents to intervene in harassment that the plaintiff was enduring at the hands of some sixth-grade peers, including the perpetrator's sister. The court agreed that based on these claims it is possible for a jury to conclude that the school district was deliberately indifferent and liable under Title IX. Its ruling allows the case to continue on to trial.  Doe v. New Fairfield Bd. of Educ. 2016 WL 310720 (D. Conn. Jan. 26, 2016)

A school district in Indiana must continue to litigate a former student's claims that school officials' tolerance of hazing on the boys' swimming team violated Title IX as well as his constitutional rights. In denying the school district's motion for summary judgment, the court determined that a jury could find based on the evidence in play that the school tolerated conduct among boys that it would not have tolerated among girls, a finding that would subject the school to liability under Title IX. Because the plaintiff alleged that the school officials' indifference to hazing was "because of sex" it was not fatal to his claim that his additional allegations that the hazing itself was "because of sex" was not supported by evidence. J.H. v. School Town of Munster, 2016 WL 427351 (N.D. Ind. Feb. 03, 2016).

An Oklahoma school district prevailed on summary judgment in a case filed by a female student who was targeted for an inappropriate relationship by her history teacher.  The student argued that the school should have been on notice of the teacher's conduct as a result of an incident in which a custodian discovered the teacher and student together in a locked classroom with the lights off.  While in fact that teacher had been kissing and touching the student behind the locked door, the teacher provided a plausible explanation for this situation when he was asked about it by school officials (the locked door he said was the result of on active shooter drill, the lights off because he was using a projector). In light of the teacher's response, the court determined that the custodian's discovery of the locked/dark classroom did not provide the school district of actual notice of the teacher's inappropriate conduct and that it was reasonable to take no further action against the teacher other than warn him not to be alone with students in the classroom. Later, when school officials received additional evidence of the teacher's conduct, they acted immediately to suspend the teacher and begin a disciplinary process that ultimately led to his resignation, thus fulfilling their obligation under Title IX to respond reasonably to actual notice of a threat of sexual harassment,.   Roof v. New Castle Public School District No. 1, 2016 WL 502076 (Feb. 8, 2016).

A federal magistrate in Texas granted summary judgment to a school district after determining that the plaintiff did not have sufficient evidence that school district's response to peer harassment was tantamount to deliberate indifference.  The plaintiff, an 11-year-old boy, was harassed by fellow students because he had "breasts like a girl" and other physical characteristics that allegedly made him appear less masculine and gay to his classmates.  In light of uncontested evidence that the school district took some disciplinary action in response to reports of bullying, the magistrate determined that school officials could not have been indifferent, even though the response was (at least arguably) too weak to curtail the bullying in question. Nor did it matter that the school district (again, arguably) failed to comply fully with its own anti-bullying policy. Concluding that the school district "should have done more" does not determine whether the school was deliberately indifferent. Drawing this distinction, the magistrate determined that the school district could not be liable under Title IX.  K.S. v. Northwest Indep. Sch. Dist., 2015 WL 9450853 (E.D. Tex. Dec. 1, 2015).

Sexual Harassment Roundup

Here is a roundup of some recent judicial decisions in Title IX sexual harassment cases:

A federal court in New York dismissed a Title IX claim against the Monroe-Woodbury Central School District.  While in tenth grade, the plaintiff, had been receiving home tutoring and treatment for anxiety and self-injurious behavior when she disclosed to a counselor the she had been sexually abused by male classmates on two separate occasions while she was in eight and ninth grades. At that point, school responded by enrolling her in an alternative education program.  When that did not work out, district officials decided to resume individual tutoring, but denied the parent's request to transfer her to a public school out of district, which they said they did not have the power to grant. The court determined that by taking these measures, the school district could not be said to have acted with the "deliberate indifference" required for liability to attach. This decision is concerning, however, not because the school district did not honor the parent's request, but because school officials apparently waited several months before informing parents that they could, if they wanted, file a written grievance that would trigger an investigation and potential corrective and disciplinary measures against the students accused of sexual assault.  In my mind, this aspect of the district's behavior should have constituted deliberate indifference. School officials should have initiated an investigation when the plaintiff first reported that she had been abused by two male students.  I see no point in requiring a formal, written grievance, let alone waiting several months before informing the student's parents of that requirement.  On this point, the court disagreed because the sexual assaults had not happened recently, but in prior years.  For reasons I don't understand, this somehow justified the school's delay in this regard.  I'm rooting for an appeal in this case.  K.F. ex rel. C.F. v. Monroe Woodbury Cent. Sch. Dist., 2013 WL 177911 (S.D.N.Y. Jan. 16, 2013).

A federal court in Missouri dismissed two separate Title IX claims against Saint Louis University filed by a former student.  One of the claims alleges that the university responded with deliberate indifference to her report that she was raped at an off-campus party in 2006.  The court rejected this claim, attributing the university's delay in commencing an investigation to the plaintiff's delay in reporting the incident and turning over the assailant's name, and pointing out the university's response, meanwhile in ensuring that the plaintiff received support and counseling.   In a separate claim, the plaintiff alleged that while a student-athlete on the field hockey team, she was the victim of sex discrimination in the supervision of the athletic training, and the absence of medical and academic support that would have kept her eligible and able to continue to participate on the team. However, the court dismissed this claim as well, citing the plaintiff's failure to compare the academic and medical support she received to that provided to male students. Roe v. Univ. of St. Louis, 2012 WL 6757558 (E.D. Mo. Dec. 31, 2012).

In Oklahoma, a federal court refused to dismiss a Title IX case against Mounds School District stemming from the sexual abuse of a student by a counselor who worked at the high school, but was employed a social services agency, not the district. The court agreed that the school district had actual notice that the counselor posed a threat of abuse to the student when the high school principal received information that the counselor was engaging in sexually suggestive communication with the student. "Actual notice," required for Title IX liability to attach, generally requires notice to a person with authority over the individual accused of harassment.  Here, even though the principal did not have direct authority to hire and fire the counselor, the court agreed that the requisite authority existed, given that the school could have still taken steps to exclude the counselor from the premises in protection of the student.  Having received sufficient notice, the school had an obligation to respond in a manner designed to protect the student from a situation that escalated into abuse, which the plaintiff satisfactorily alleged the school did not do.   Doe v. Defendant A, 2012 WL 6694070 (N.D. Okla. Dec. 21, 2012). 

District Court Upholds Damages Award in Sexual Harassment Trial

Last August we blogged about a Title IX case against the Hilldale Independent School District in Oklahoma arising from the sexual abuse of the 14-year-old plaintiff by the band director. At that time, we noted that the case had survived the school district's motion for summary judgment and appeared to be headed for trial.

Since that post, the case did go trial. A jury agreed with the plaintiff that the school district did not respond reasonably to information it received that called the band director's conduct into question. It then awarded the plaintiff $150,000 in damages on her Title IX claim. The jury also awarded $150,000 on the plaintiff's claim that the school district subjected her to danger in violation of her constitutionally rights, another $150,000 on her claim that the school district's inaction impaired her constitutional right to bodily integrity (derivative of the right to liberty), and yet another $150,000 on a theory of negligent supervision under state law.

The school district then moved to dismiss or reduce the jury awards, arguing that the plaintiff received "duplicative recoveries by pleading alternative theories for the same relief." The court disagreed, reasoning that while each of the plaintiff's legal theories stems from the same set of fact, the harm alleged under each claim is distinct, and the jury was instructed to devise its award accordingly. Specifically, the court emphasized the the damages covered in the Title IX award is the lost educational benefits, which is different from the harm to plaintiff's personal security and bodily integrity that are protected by the Constitution.

The decision upholding the jury award is: J.M. v. Hilldale Indep. Sch. Dist., 2008 WL 4511872 (E.D. Okla. Oct. 3, 2008).

Oklahoma school paying attention

Administrators at Westmoore High School in Oklahoma say they are taking the recent Title IX complaint filed by two sets of parents of softball players very seriously. Moore school district superintendent Debbie Arato said she is thoroughly reviewing the complaint which lists eight points of concern by the parents, including inequitable facilities.
Arato says the issue of the softball facilities, which the complainants claim are inferior to those used by the baseball team, is something they are aware of and had planned on addressing.
Nothing like a lawsuit to get people thinking about turning plans into actions.

Oklahoma update

Thanks to one of the plaintiffs (who emailed us) in the case of inequities regarding the softball team at Westmoore High School in Oklahoma we now know a little more. There is both a lawsuit pending and a complaint filed with OCR. I suspect we will hear more about this soon.

Inequality in Oklahoma softball?

It's hard to believe that there are issues of equity in softball in the state of Oklahoma. I mean, Oklahoma, where the College World Series is held every year. It's a state that would seem to prize softball. But apparently the value the sport has at the collegiate level has not had a universal trickle-down effect. (Not so surprising given the flaws of most trickle-down theories.)
Two sets of parents are complaining about inequities concerning the softball program at Westmoore High School. Specifically there are concerns over the amount of money spent on baseball versus softball and facilities.
The article linked above seems to use complaint and lawsuit interchangeably so I am not certain as to what exactly will happen next: an OCR investigation or a legal hearing.
Apparently (informal) complaints and concerns have been issued for over a decade with little change. One of the parents involved said this about the facilities issues:
"You look one way and see the baseball field. You look the other and see the softball field. Not much more needs to be said.”
It sums up perfectly the reason we have given in the past for the seeming surge in complaints related to softball: it's right there in front of your eyes. And administrators are being forced to open theirs.

Oklahoma Harassment Suit Survives Summary Judgment

A federal court in Oklahoma agreed that a jury should decide whether the Hilldale Independent School District is liable under Title IX for failing to protect the plaintiffs' fourteen-year-old daughter and another student from sexual abuse by the band director, Brian Giacomo. The district tried to argue that its response did not qualify as "deliberate indifference" necessary for Title IX liability to attach, but the court disagreed. A jury could reasonably conclude that the district should have conducted an investigation after the principal initially learned from another student that Giacomo was engaging in sexual conduct with students on a band trip. Instead, the district did not investigate or terminate Giacomo's employment for several more months, after the principal received copies of sexual comments Giacomo left on students My Space pages and other evidence. Noted the court, "Often, the minimum required response to avoid 'deliberate indifference' is for the school to conduct a legitimate investigation," which, a jury could conclude the district waited too long to do.

Decision is: J.M. v. Hilldale Indep. Sch. Dist., 2008 WL 2944997 (E.D. Okla. July 25, 2008).