Sexual Harassment Roundup

Here are summaries of several recent judicial decisions applying Title IX to sexual assault and sexual harassment:

The Eighth Circuit Court of Appeals affirmed a lower court's decision (which we blogged about here) to dismiss Title IX claims against St. Louis University on summary judgment. The plaintiff, a female student-athlete, alleged that the university responded with deliberate indifference after she reported to campus officials that she had been sexually assaulted at an off-campus party.  But the court determined that the university's response was adequate.  An athletics administrator set up a meeting with the student as soon as she learned about the assault.  The administrator offered her support and instructed her on how to file a complaint, though the student declined to do so.  Later, the student's father reported the assault to the campus police, who immediately commenced an investigation as well as cooperated in separate investigation by St. Louis police.  The court rejected the plaintiff's argument that the administrator should have involved the Title IX Coordinator, as OCR requires, by affirming that the "deliberate indifference" standard that applies to civil lawsuits for money damages is not the same as the regulatory standard of compliance that applies to administrative actions. The court also agreed with the district court that Title IX did not apply to this off-campus party because that situation was outside of the university's control. Yet given that the rapist turned out the be a student, and the ramifications of the rape followed the victim back to campus, I think the university's jurisdiction was clear. Roe v. St. Louis University, 2014 WL 1181097 (Mar. 25, 2014).

A federal district court in Pennsylvania dismissed Title IX claims against East Stroudsburg University alleging that officials there could have protected male students who worked in the university's development office from sexual harassment by their supervisor, Issac Sanders.  The student plaintiffs alleged that university officials were on notice of sexual improprieties committed by Sanders prior to the first student's filing of an official complaint against him in 2007. However, despite the plaintiffs' allegation that Sanders had a reputation for inappropriate sexual relationships with the male student-workers, the plaintiffs could not point to anything specific and credible known by university officials that should have triggered an earlier response.  Moreover, the court agreed with the university that officials responded appropriately after they received the first official complaint against Sanders.  Though the court dismissed the plaintiffs' Title IX claims against the university, it did allow separate claims against Sanders on other grounds to move forward.  Bernard v. East Stroudsburg University, 2014 WL 1454913 (E.D. Pa. Apr. 14, 2014).   

A federal district court in Pennsylvania denied a school district's motion to dismiss the Title IX claim of a female high school student arising from her sexual assault by a male Junior Reserve Officer Training Corps (JROTC) instructor.  The court agreed that she sufficiently alleged the school district to have had actual knowledge that the instructor posed a substantial danger to students because the school district had received five complaints in the past from students alleging that he had subjected them to sexual harassment and sexual misconduct.  Additionally the plaintiff adequately alleged that officials' failure to discipline, train, or monitor the instructor amounted to deliberate indifference.   Doe v. Boyertown Area Sch. Dist., 2014 WL 1281125 (E.D. Pa. Mar. 28, 2014).

A female middle school student's claim that the Breathitt County Board of Education is liable under Title IX for the sexual advances of her male teacher survived the board's motion for summary judgment.  The federal district court in Kentucky determined the plaintiff presented sufficient evidence that school officials had actual knowledge that the teacher posed a substantial risk of sexual harassment to female students, including that they knew he had exchanged many text messages of a personal nature with other female students.  The court also believed a jury could find that the school board's decision to rehire him amounted to deliberate indifference.  Thorpe v. Breathitt County Bd. of Educ., 2014 WL 1101035 (E.D. Ky. Mar. 21, 2014). 

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).