Friday, December 03, 2010

Drivers Ed Harassment Case Survives Motion to Dismiss

A federal court in Pennsylvania recently held that a student's claims stemming from sexual abuse by a drivers ed instructor could survive the school district's motion to dismiss. Specifically, the court agreed that the plaintiff alleged all of the elements for Title IX liability (as well as some of her other claims, including the 14th Amendment). Because the alleged conduct involved a forced sex act, it is necessary severe and pervasive, the first requirement for liability. Also, the school allegedly had adequate notice of the instructor's propensity to commit abuse, based on two prior incidents of harassment (one in which he asked a student to show him her nipple piercing, and another in which he asked a teacher to show him her tattoo), which were reported, and his general reputation. Finally, the school district's response constitutes deliberate indifference, as the instructor was not disciplined for the prior incidents of harassment, and was allowed to take students on one-on-one driving lessons, in contravention of district policy. Thus, the plaintiff may continue to pursue her Title IX claim against the district.

The plaintiff also successfully alleged Title IX retaliation claim against the school district, in that she claimed that school officials did not protect her from the harassment by teachers and peers that she faced after reporting the instructor's misconduct. The plaintiff alleges that she was so uncomfortable at school due to the hostile environment created by teachers' and students' vocal support for the instructor -- one teacher even posted a letter, in the plaintiff's presence, soliciting donations to the instructor's defense fund -- that she withdrew from school and continued her education from home. Recognizing that the school district has an obligation to respond to retaliatory harassment, the court held that the school could be found liable for retaliation if these facts prove true.

E.N. v. Susquehanna Township School District, 2010 WL 483700 (M.D. Pa. Nov. 23, 2010).