Yearbook discrimination

Every spring a handful of stories emerge about high school students who want to do things that school districts feel are gender inappropriate: go to prom with a same-sex date, wear attire to prom that is perceived as gender non-conforming, run for homecoming king or queen in a non-biologically matching sex, wear the "feminine" or "masculine" attire for a yearbook photo. Some of these cases invoke Title IX, others do not, or do not make it that far.
The latest of these stories is the censorship of a gay male student's story--one that was solicited by the yearbook staff--in the yearbook.
In Arkansas, Taylor Ellis, a junior at Sheridan High School, wrote one of 7 profiles that would be shared in the school yearbook. He came out a year ago and his profile was (ironically) about how accepted he had been by the community in that time. But the school district feels it is "too personal" and has told the yearbook it will not be allowed to publish any of the 7 profiles. They clearly see that they cannot target Ellis's profile, but that does not mean the decision has been without controversy. Yearbook staffers are upset at the censorship, as are other students, and now the Human Rights Campaign has gotten involved in trying to pressure state officials to intervene.
The school district seems to be holding fast. The school superintendent issued that following statement earlier in the week:

We must make decisions that lead in the proper direction for all of our students and for our community. We must not make decisions based on demands by any special interest group.

The seven profiles will not be published in the yearbook.

 

Not sure who the "special interest group" is here. The yearbook? The students?  Ellis is not standing by himself here. He has the support of the larger community.

The tactic of "punishing everyone" that we seen with schools that cancel all extracurricular student clubs so that they do not have to allow a gay-straight alliance to meet, for example, is not working. If administrators hope that peer pressure will compel LGBT groups and students to skulk away they are 1) not in touch with shifting cultural tides and 2) very misguided and uncompassionate educators.

Sexual harassment roundup

Here is a round-up of recent judicial decisions in Title IX cases involving sexual harassment and sexual abuse.

A federal district court denied a school district's motion to dismiss Title IX claims (as well as claims based on the ADA and Rehabilitation Act) filed by a student with Asperger's syndrome who was bullied throughout middle school and high school. Several instances of alleged harassment were sexual in nature, including the plaintiff having been taunted by other students to "touch my dick, you know you want to," having his pants pulled down, and several occasions where another student would grind his penis into the plaintiff's back.  These allegations, as well as the plaintiffs claim that his reports of harassment were ignored because of his sex and/or perceived sexual orientation, were sufficient allegations to satisfy the law's requirement that discrimination be "because of sex."  Galloway v. Chesapeake Union Exempted Village Schools Bd. of Educ., 2012 WL 5268946 (S.D.Ohio, Oct. 23, 2012).

In Arkansas, a similar case survived the defendant school district's motion for summary judgment on plaintiff's Title IX and other claims arising from a disabled student's ongoing sexual assault by another student in his alternative classroom. The plaintiff's evidence supports allegations that school district officials knew of the abuse and responded with deliberate indifference, precluding summary judgment.  Braden v. Mountain Home School Dist., 2012 WL 5183575 (W.D.Ark. Oct. 18, 2012).

The federal district court in D.C. dismissed a Title IX claim against Howard University, filed by a group of students who alleged they were sexually harassed by a university employee in the course of their work-study employment at the library. The plaintiffs' complaint does not allege that an appropriate university official had actual notice of the harassment that was going on, as those individuals named in the complaint as having notice of the harassment were not individuals with authority over the offending employee. Bello v. Howard University, 2012 WL 4893727 (D.D.C. Oct. 16, 2012).

An Oregon school district won a motion to dismiss plaintiff's claims in a peer harassment case involving the persistent bullying and harassment of a middle school boy, including an incident in the locker room where another male student who was partially clothed "thrust his groin" against the victim's.  The court determined that this was not actionable under Title IX because there was "not more than a scintilla of evidence" to support plaintiff's claim that the harassment was motivated by his perceived homosexuality and thus covered by Title IX's prohibition on discrimination "because of sex."  A.E. ex rel. Evans v. Harrisburg Sch. Dist. No. 7,  2012 WL 4794314 (D. Or. Oct. 9, 2012)

A high school student in New York did not sufficiently allege Title IX violations by her school district in a case involving ongoing molestation outside of school by student in the same school, as well as ongoing teasing and harassment by other girls.  The court said that allowing the molesting student to remain in the same lunch period as the victim was not an example of "deliberate indifference," since she was not in danger of being molested in the lunch room.  As for the harassment by other girls, the complaint did not support the plaintiff's claim that the harassment was "because of sex" rather than for other reasons.  The fact that some sex-related epithets were used by the harassers -- e.g., "whore" and "bitch" -- did not reveal their gender animus, given that they used other, non-gendered epithets as well. HB v. Monroe Woodbury Cent. School Dist., 2012 WL 4477552 (S.D.N.Y., Sept. 27, 2012).

A Colorado school district is not liable for sexual abuse and sexual harassment committed by a teacher against three female student victims because school officials did not have notice that the teacher posed such a threat. The plaintiffs argued that the teacher had been the subject of complaints during a stint, 6 years prior, as a student teacher at another high school in the same school district. However, the court determined that those earlier complaints -- which involved inappropriate contact and phone calls that made female students uncomfortable -- were too distant and too dissimilar from the present abuse to put school officials on notice that this teacher posed a threat of abuse. The court reached this conclusion about dissimilarity based on the fact that the earlier complaints did not expressly allege inappropriate contact that was sexual in nature. The court did not seem concerned that whatever the nature of the earlier complaints, they were serious enough to warrant the student-teacher's dismissal from his field placement, suggesting that officials at the first high school thought he was a threat.  Doe No. 1 v. Boulder Valley School Dist. No. Re-2, 2012 WL 4378162, (D.Colo. Sept. 25, 2012).

Nor was an Alabama school district liable for an incident in which a janitor inappropriately touched a female student in the hallway.  The plaintiff alleged that the school district had actual notice of the threat posed by this janitor given past complaints of sexual harassment filed by other teachers and employees at the school.  The court reasoned, however, that because these complaints were filed by employees, not students, school officials were not on notice that the janitor posed a threat to students. E.S. v. Daleville City Bd. of Educ., 2012 WL 4378190 (M.D.Ala. Sept. 25, 2012).

Sexual Harassment Roundup

Schools prevailed in three recent Title IX cases involving sexual harassment:

• A federal court in Pennsylvania refused to enjoin a university disciplinary proceeding allegedly filed in retaliation against a victim of sexual assault for reporting her abuser to authorities. The court recognized that the plaintiff "raises serious concerns about the protections afforded to victims of sexual assault" in that the hearing will require her to confront the person she has accused of sexual assault within one month of the alleged incident and to respond to his charges that her accusations are false. However, the court determined that the hearing itself does not amount to harassment or discrimination against the plaintiff, in part because it will be conducted by a chairperson who can ensure that all questions remain relevant and appropriate, and that the perpetrator of the alleged assault does not have the chance to directly question the victim. Sefanowtcz v. Bucknell Univ., 2010 WL 3938243 (M.D. Pa. Oct. 5, 2010).

• An elementary school's response was sufficient to preclude Title IX liability for a sexual incident between kindergartners, a federal magistrate has ruled. School officials discovered that one boy touched another's genitals while alone together in the bathroom. The principal then discussed the incident with both boys and their parents, and required oversight to ensure that the boys would not use the bathroom at the same time. These efforts did not prevent a second sexually-suggestive incident between the boys in the bathroom, but they nevertheless could not be characterized as "deliberate indifference." There was no evidence other than the first incident that would have suggested that the perpetrating student would continue to harass the victim, so the district's decision to address this issue with a monitoring requirement. Nor does the fact that the boys somehow managed to evade the bathroom monitor charged to keep them separated render the school's response indifferent one. Brooks v. City of Philadelphia, 2010 WL 392835 (E.D. Pa. Oct. 5, 2010).

• The Eight Circuit recently granted a school district's motion for summary judgment on a plaintiff's Title IX and constitutional claims stemming from the sexual misconduct of a basketball coach at Delight High School in Delight, Arkansas. The plaintiff's parents sued the school district and various officials after learning that the coach, Chad Smith, was having a sexual relationship with their daughter, a player on the team. On appeal from a decision denying the motion, the appellate court determined that the facts alleged failed to satisfy Title IX's requirement that school district officials have actual notice of sexual abuse or harassment and responded with deliberate indifference. Specifically, the court rejected that prior claims of inappropriate text messaging by Smith produced such notice. District officials had investigated and addressed these messages, and with regards to the only message with sexually suggestive content, determined that it not been sent by the coach at all. The principal also followed up on a rumor that the plaintiff's daughter was skipping class to spend time with Smith, but found no evidence to corroborate this claim. Moreover, other claims of misconduct by the coach (threatening players and directing them in an act of poor sportsmanship) -- though resulting in the district's decision not to renew his contract -- failed to provide adequate notice that he was sleeping with a player. Doe v. Flaherty, 2010 WL 4068748 (8th Cir. Oct. 19, 2010).
  

Changes in harassment law in just a decade

We have posted about the harassment experienced by Arkansas (former) high schooler Billy Wolfe, (here and here) who is engaged in a lawsuit against his former school district. That lawsuit is ongoing.
But this article reminds us that there were very few avenues for students who were victims of sexual harassment when that harassment was of the same-sex variety.
In the same schools that Wolfe attended, William Wagner, in the mid-90s, experienced harassment of a very similar nature to that which Wolfe endured not that long ago. But back then there was no protection against same-sex harassment and no remedy under Title IX. In 1997, just after Wagner's incidents, OCR released guidelines that applied the law to same-sex harassment.
That was the change. Unfortunately the administrators in the Fayetteville school district have not changed much. Actually, the have not changed at all. Those named in the Wolfe lawsuit are the same that turned blind eyes and deaf ears to William Wagoner over ten years ago.

More filings in bullying case

Last March, Erin wrote about a NYT profile of a victim of peer harassment in an Arkansas high school. The victim, Billy Wolfe, has since graduated from Fayetteville High School but there was, as Erin predicted there would be, a federal lawsuit filed against the school district. And then, this past week, Wolfe's attorney added to the original filing a 56-page brief that highlights the indifference of school administrators to the situation.
The details of Wolfe's abuse can be found in the NYT profile.
They are so egregious that one has to wonder how school officials could not know what was going on. And if they truly had no idea...well one has to wonder exactly what they were paying attention to.
Wolfe's attorney will have to prove the school knew about the harassment but did not take steps to prevent future incidences in order to legitimate the Title IX claim. There was nothing in the article that indicated what that evidence might be. Though, again, hard to miss what seems very obvious.
A trial date has been set for September.