Friday, July 13, 2012

Sexual Harassment Roundup

The courts have issued a lot of sexual harassment decisions over the summer, and I admit I've fallen a bit behind.  Here is my first attempt to catch up. 

The Seventh Circuit affirmed a lower court ruling (which we also blogged about) dismissing a student-employee's case against Southern Illinois University stemming from an emeritus professor's sexual harassment of a male student.  While the lower court had a hard time seeing the harassment -- which consisted of ongoing sexually demeaning comments and touching -- as "because of sex" to qualify for protection under Titles IX or VII, the appellate court did not address that issue in its opinion.  Instead, it determined that the school's not-unreasonable response to the plaintiff's complaints of harassment, which included banning the professor from campus and  involving the university police, warranted dismissal of plaintiff's case.  Milliken v. Southern Illinois Univ., 2012 WL 2764971 (7th Cir. July 10, 2012).

A federal district court in New York rejected that students' teasing of a male high school student with Asperger's syndrome was motivated by the victim's sex.  Even though the harassment consisted in part of anti-gay slurs, those comments did not sufficiently convey animus towards the plaintiff's gender.  But the court did allow the plaintiff's case to move forward on his claim that the harassment related to his disability rendered the school district liable under the Rehabilitation Act.  Using a similar analysis to that of Title IX harassment, the court agreed that the plaintiff sufficiently alleged that school officials responded with the requisite 'deliberate indifference' because they did not respond to numerous reports of harassment filed by the plaintiff's parents.  Preston v. Hilton Cent. Sch. Dist., 2012 WL 2829452 (W.D.N.Y. July 10, 2012).

In a similar case, a student with a condition called hereditary multiple exostoses sued his school district over peer harassment he sustained throughout elementary and middle school.  Even though some of this teasing involved sexual innuendo, the court decided that it was not sufficiently motivated by the victim's sex to warrant protection under Title IX.  However, the court left open the possibility that the plaintiff could add allegations to make clear that the harassment occurred because he was gender-nonconforming in some way.   Similarly, the court also rejected the plaintiff's case under the theory of disability discrimination, finding insufficient allegations that incidents of harassment were motivated by the plaintiff's disability, given that only one reported instance of harassment involved mockery of the plaintiff's bone disorder.  Hoffman v. Saginaw Public Schools, 2012 WL 2450805 (E.D. Mich. June 27, 2012).

A federal district court in Arizona dismissed a case involving a freshman female student's allegation of sexual assault by a senior boy.  The plaintiff alleged that school officials had notice of the threat harm because the principal, who happened to be the accused's father, knew that his son had committed an earlier act of rape against another girl.   The court rejected that this constituted knowledge of a specific threat to the plaintiff, however.  Doe v. Round Valley Unified Sch. Dist., 2012 WL 2064382 (D. Ariz. June 7, 2012).

Finally, for this roundup at least, comes a decision from a federal district court in Ohio that allows a Title IX sexual harassment case to proceed to trial.  The plaintiffs are suing on behalf of their daughter Jessica, a senior in high school who committed suicide in 2008 after her naked picture was circulated among her classmates via text message (Jessica's suicide received national attention).  The court agreed that this incident and its aftermath, which included name-calling of a sexual nature, constituted harassment because of sex.  Furthermore, the complaint alleged that school officials had actual notice of the harassment based on a combination of Jessica's report to a teacher that generally referenced harassment, though not the specific details, as well as an interview Jessica later recorded for a local television station about the dangers of sexting, though her face and voice were obscured.  Based on these allegations, a jury could find that school officials knew enough about what was happening to warrant stepping in to protect Jessica.  The case will move forward on the Title IX claim, and the court will also allow the plaintiffs to pursue individual liability under 42 U.S.C. 1983 and the Constitution's Equal Protection Clause.  Logan v. Sycamore County Bd. of Educ., 2012 WL 2011037 (S.D. Ohio June 5, 2012).