Decision Roundup: Deliberate Indifference Edition

Here are some recent judicial decisions addressing institutional liability for sexual harassment and misconduct. These cases all specifically focus on the institution's alleged deliberate indifference:

A student who was sexually assaulted by a classmate plausibly alleged that her school district was deliberate indifferent to the threat posed by the perpetrator, whom school officials knew to have recently touched other female students without consent, and whom they allegedly failed to discipline prior to the sexual assault in question. T.Y. v. Shawnee Mission Sch. Dist., No. 17-2589-DDC-GEB, 2018 WL 2722501 (D. Kan. June 6, 2018).

Affirming the lower court, the 11th Circuit Court of Appeals held that a Florida school district was not deliberately indifferent to reported harassment where it met with the victim and family the day after receiving the report and the day after that, and, following the week-long investigation, suspended the harasser for two days and ordered him not to have any more contact with her.  G.P. v. Lee County School Board, No. 17-14657, 2018 WL 2714658 (11th Cir. June 5, 2018).

A student who was attending a gateway program of the University of Notre Dame argued that the university was deliberately indifferent when it opened an investigation into her sexual assault that had been reported by someone else. But the court dismissed the claim, ruling that the university's decision to respond to the report, was not clearly unreasonable because the university had other reports that the same perpetrator, a UND football player, had assaulted another woman as well, and therefore had "an  obligation to the larger community to investigate the matter." Doe v. Univ. of Notre Dame Du Lac, No. 3:17CV690-PPS, 2018 WL 2184392 (N.D. Ind. May 11, 2018).

A school for students with autism may stand trial on a Title IX claim that it didn't do enough to protect one of its students from being molested by a fellow student who was 6 years older.  The perpetrator had previously been accused of attempting a rape his roommate, and was also known to have shown pornography to the plaintiff. In light of this knowledge, the court concluded, a jury could conclude that the school's failure to separate the plaintiff from the perpetrator and more adequately monitor his conduct amounted to deliberate indifference, and thus denied its motion for summary judgment. Doe v. The League School of Greater Boston, 2018 WL 2077595 (D. Mass. May 3, 2018).

A school district in Missouri must continue to litigate claims arising from a coach's sexual abuse of a student after losing its motion to dismiss Title IX and other claims. The plaintiff alleged that the school officials had knowledge of various acts of increasingly-severe misconduct committed by the coach (who was criminally convicted). The district's failure to discipline or remove the coach could therefore be seen as deliberate indifference, subjecting the district to liability for the abuse the student endured.  KC v. Mayo, 2018 WL 2107201 (W.D. Mo. May 7, 2018)

The school district in Russell County, Virginia, must continue to defend a lawsuit precipitated by a school custodian's sexual abuse of young boys after a federal court denied summary judgment on Title IX claims that alleged the school district's deliberate indifference to the abuse. The plaintiff, one of the students who had been the victim of that abuse, alleged that that school district should have conducted an independent investigation when it learned that the custodian's wife had called on county officials (its Department of Social Services) to investigate the relationship with the student. For its part, the school district argued that it was reasonable to forgo such an investigation in light of the fact that DSS did not find any evidence of abuse, and that the student's guardians had consented to the custodian's role in the student's life. But the court concluded that it was possible that a jury could determine that the school district's response was clearly unreasonable after hearing all the evidence, and allowed the claim to proceed. The court also found that the plaintiff had presented sufficient evidence from which a jury could conclude that that the school responded with deliberate indifference to the custodian's confession to abusing the student. Evidence that the school board failed to offer counseling or other remedial measures or implement any training or personnel policies aimed at preventing future abuse would support a jury's conclusion that the school district is additionally liable for damages arising after notice of the abuse came to light.  Doe by Watson v. Russell Cty. Sch. Bd., 2018 WL 842196 (W.D. Va. Feb. 13, 2018)

A federal magistrate in Texas recommended the dismissal of Title IX claim against the Austin Independent School District arising from harassment that the female plaintiff endured from another male student who had persistently pressured her for a romantic relationship and acted out in disturbing ways when she declined. The magistrate determined that the school had notice of the male student's obsessive behavior regarding the female student after an incident in which the male student exhibited suicidal behavior.  Yet, the school district's response to that information amounted to more than deliberate indifference. School officials developed a safety plan that included a security guard to shadow the female student.  Even though this did not completely eliminate encounters between the female and the male student, it did minimize them and ensured that no harassing behavior occurred again. Therefore, the school district's response was not clearly unreasonable and the school district could not therefore be liable for damages to the plaintiff under Title IX.  E.M. v. Austin Indep. Sch. Dist., 2018 WL 627391 (W.D. Tex., Jan. 30, 2018).

Boys Excluded from Field Hockey Teams

Yesterday we posted about a girl playing on a boys team, so today we'll discuss a couple of stories about cross-over participation of the other variety.  Keeling Pilaro was recently excluded from the Southampton (NY) High School girls' field hockey team, on which he had played for two years, by the Suffolk County high school athletics governing body, Section XI.  Its policy allows boys to play on girls' teams unless doing so creates "significant adverse effect upon the opportunity of females to participate successfully."  It appears that Pilaro, who grew up playing field hockey in Ireland, was deemed too good to be allowed to continue to play with girls. According to ESPN, he posted a "team-high 10 goals -- not dominant by any means, but good enough to earn All-Conference recognition."  Many are objecting to the decision to exclude Pilaro, who is a small guy at 4'9" and 82 pounds -- and even opposing players and coaches have supported his right to play.

Elsewhere, it was reported that eighth grader Matthew Bozdech was denied a waiver from the Missouri State High School Athletics Association's policy that excludes boys from girls teams, which he had sought in order to play field hockey on the newly formed girls team at Eureka High School.   Bozdech has been playing field hockey for several years, and enjoys the camaraderie with his female teammates.

What does Title IX say about this?  Contrary to suggestions in both stories, Title IX is not necessarily violated by a school that allows girls to try out for boys' teams (football, say) but denies the same right to boys playing on girls' teams.  For one reason, when it comes to contact sports, Title IX allows but does not require schools to allow cross-over participation.  There are some quirky definitions of contact sport out there -- basketball is listed as a contact sport in the Title IX regulations -- so it's arguable field hockey shares this status as well.  More importantly, Title IX regulations recognize that girls' athletic opportunities have "historically been limited," which justifies their crossover participation in a way that does not apply to boys, who usually have and have always had more athletic opportunities overall. 

Yet, I will throw out a Title IX argument in favor of Keeling Pilaro's case.  Courts have held that once a school allows cross-over participation in situations where it is not required by Title IX, it may not then discriminate against that cross-over player on the basis of sex.  I would argue that Section XI has elected to allow Pilaro to play even though Title IX does not require it to do so. Therefore, it may not single him out for differential treatment based on sex. Clearly it has done so, as no girls are subject to the possibility of losing eligibility for being too good at the game.  Only Pilaro, because of his sex, faces the dilemma of playing well or playing at all.

Moreover, if I were in charge, I would opt to move the cross-over participation regulations out of the stone ages by (1) eliminating the contact sport exemption, which is blatantly rooted in sex stereotypes, and (2) requiring schools to allow cross-over participation to both sexes unless doing so would take away an actual opportunity from the underrepresented sex. Under this formulation, only two questions would be relevant in the two cases described above: (1) do girls have fewer athletic opportunities than boys at Eureka and Southampton high schools? and (2) does letting a boy play on the field hockey team reduce those opportunities even further?  If girls are underrepresented in athletics at those schools, but the field hockey team has a "no cut" policy and would take any additional girl who wants to play (and be able to provide meaningful playing time to that girl), then having a boy on the team does not reduce opportunities for girls, and should be allowed.  In their current form, the Title IX regulations unnecessarily limit cross-over participation and deny to both sexes the benefits that come when boys and girls are allowed to play together.  As long as boys' participation does not exacerbate existing inequalities in participation, girls' sports don't need protection from boys.  Good players of either sex raise the level of the game, and playing with boys helps cultivate respect for female athleticism.  We ought to get over our antiquated squeamishness about mixed-sex athletics and let the boys play.

Single-Sex Education Cancelled in Tacoma, Challenged in Missouri

A school district in Tacoma, Washington recently rescinded a single-sex education program that had segregated sixth grade students by sex for classes in all core subjects at Jason Lee Middle School. This change in course occurred after the state of Washington's Office of the Superintendent of Public Instruction informed the district that state education law actually prohibits single-sex education outside the context of health, physical education, and choir. The district reportedly believed that its program complied with federal Title IX regulations that broadened single-sex education, and did not realize that state law was more restrictive in this regard. However, I'm not sure this program would have survived a challenge even under Title IX, given the regulation's requirement that districts make coed alternatives available, provides students and parents with a choice, and limit single-sex education to those that are "substantially related" to an "important objective." Such a broad scope encompassing all the core subjects in an entire middle school grade definitely raises questions about its compliance with both of those requirements.

Speaking of challenges to single-sex education programs under Title IX, the ACLU has requested that the Adrian School District, outside Kansas City, Missouri, curtail its single-sex education program that offers segregated math and "communication arts" classes in the 6th, 7th, and 8th grade. The ACLU cited growing evidence challenging the efficacy of single-sex education, which calls into question the ability of single-sex education to truly promote an important education objective as required by Title IX regulations or the Equal Protection Clause.