Nonbinary Student Forced Off Boys' Teams

Outsports posted yesterday a story about a middle school athlete in California who has been kicked off the boys' basketball team for reasons related to the athlete's gender identity.  The athlete, Junior White, identifies as nonbinary -- that is, having a gender identity that is neither singularly male or female.  Junior's assigned sex from birth is male and Junior competes on the boys football and basketball teams. Junior's teammates and the school community were initially supportive of Junior's gender identity, but his Junior' recent decision to use the girls' locker room and restroom -- where Junior feels more comfortable because of his trans* status --  apparently provoked the school principal to insist that Junior's use of the girls' facilities makes him ineligible for boys' sports.  

This is an odd position for the school to take, which to me raises questions about whether the principal's objective is for Junior to play on girls' teams, or for Junior to stop using the girls' bathroom. It is odd because usually it is more controversial when transgender girls want to play girls sports than when they want to keep competing consistent with their male birth sex. It is also inconsistent with California law, which "permits" athletes to participate on athletic teams in a manner consistent with their gender identity, "irrespective of the gender listed on the pupil’s records."  It permits gender-identity based participation -- it does not require the athlete to give up competing on the teams that correspond to the athlete's gender of record.  Put simply, this means if Junior identifies as female, Junior can play girls' sports if Junior wants to. But neither of these statements are true. Junior identifies as nonbinary, and Junior wants to play boys' sports, consistent with the gender in Junior's records.

The principal's decision is even more odd for declaring Junior ineligible for football along with boys' basketball. If a school offers separate boys' and girls' teams in a single sport, a school can prohibit a girl from playing on a boys' team and vice versa, consistent with both Title IX and constitutional principles of equal protection. But in situations where there is not a girls' team in the sport in question, female athletes routinely won the right to try out. Even in contact sports like football (which are exempt from this aspect of Title IX), female plaintiffs have prevailed by challenging their exclusion under the equal protection clause.  So, even if Junior did identify as female, that would not be a valid basis for excluding Junior from the football team. 
   
The Outsports article mentioned that the Junior and other students and supporters are protesting the school's decision. My feeling is that if they wanted to add a legal challenge to the mix, they would be on solid ground.

Teachers' Sexual Misconduct at Issue in Recent Cases

In the last month or so federal courts have made decisions in several cases in which sexual misconduct by teacher and coaches have given rise to Title IX litigation. Here is a summary.

A federal court in Pennsylvania refused to dismiss Title IX claims stemming from a music teacher's ongoing sexual assault of a student that began when she was in middle school and extended into high school. The male teacher had intercourse and engaged in other acts of sexual assault with the female student on multiple occasions and the student had gotten pregnant as a result. Twice the student reported the teacher's misconduct to another teacher.  School officials claimed they did not ever hear about the first report, but they did get the second.  Rather than investigating, however, they allegedly pressured the victim to rescind her claims against the music teacher. (Eventually the teacher plead guilty in a criminal proceeding.)  Especially when factoring in earlier complaints that this same teacher had harassed other female students, the court agreed that she had satisfactorily alleged notice and deliberate indifference, the key elements for institutional liability under Title IX. K.E. v. Dover Area Sch. Dist., 2016 WL 2897614 (M.D. Pa. May 18, 2016).

Also in Pennsylvania, a school district prevailed at summary judgment on claims that it violated Title IX by failing to protect a student from sexual abuse by her coach. In this case, school officials found out about the ongoing misconduct when the coach was arrested by police. There was no evidence suggesting that they knew about what was happening and failed to intervene. The coach had been dismissed from another school for sexual misconduct, but on inquiry from the defendant's athletic director, the coach's prior employer said that his dismissal was due to "excessive texting" of a student, which did not put the defendant on actual notice that the coach posed an imminent sexual threat to his players. Nace v. Pennridge Sch. Dist., 2016 WL 2609789 (E.D. Pa. May 6, 2016).

A female student on the predominantly-male wrestling team sued her Pennsylvania school district for failing to respond to her allegations of sexual harassment by the coach. The court disagreed with the plaintiff's characterization of the coach's behavior as sexual harassment and dismissed the claim. Specifically, the court acknowledged that the coach was "vulgar and inappropriate" -- he told the plaintiff and another female wrestler that they had to "be the boy" and ought to wear strap-ons. He teased other male wrestlers on the team that the plaintiff is the only girl he would ever touch or have on top of him. But, the court determined, this harassment was not sufficiently pervasive because the plaintiff alleged only about 10 sexually-tinged comments over 2-3 years.  Also, because the coach acted this way towards all the wrestlers on the team, he was not singling out the plaintiff because of sex.  Moeck v. Pleasant Valley Sch. Dist., 2016 WL 1553440 (M.D. Pa. Apr. 15, 2016).

Other states besides Pennsylvania contributed cases to this collection. A federal court in Georgia determined that the plaintiff had not sufficiently alleged that the school district was on notice of a teacher's sexual misconduct, and dismissed her case accordingly. The very day that the student's stepfather reported evidence of the teacher's misconduct to school officials, the district commenced an investigation. By the end of the day, the teacher had resigned and was facing criminal charges. Nothing in the plaintiff's complaint suggested that the school district had missed earlier opportunities to intervene, the court concluded. Specifically, the court rejected the plaintiff's argument that the school district was on notice because it knew that the teacher had been fired from an earlier job for sexual harassment. According to the court, this knowledge did not put officials on notice that the teacher posed an imminent threat to this particular student. Though the court did acknowledge past misconduct can in some cases provide notice of an imminent threat against a new victim, there must be a stronger pattern of past misconduct than what was alleged here. S.W. v. Clayton County Public Schools, 2016 WL 2755607 (M.D. Ga. May 12, 2016).

In this last case, the student did not claim that the school district was liable for the teacher's misconduct, but instead, for retaliating against him for having been involved in a sexual relationship with the teacher.  The court quickly dismissed this claim, noting that it failed to allege many required elements of retaliation. For one, the student himself did not engage in the requisite protected conduct by reporting the teacher's abuse; instead, school officials discovered it based on reports of other students. Additionally, there was no basis for concluding that the disciplinary action that the student later faced for chewing tobacco and other offenses were in any way related to his relationship to the teacher.  Gordon v. Traverse City Public Schools, 2016 WL 1566721 (W.D. Mich. Apr. 19, 2019).

Sexual Harassment Roundup: K-12 Cases

Here are summaries of some recent judicial decisions involving Title IX claims against school districts for failing to adequately respond to reports of sexual harassment and abuse.

A federal court in Connecticut refused to grant summary judgment to a school district in a case stemming from a ninth-grader's repeated sexual abuse of the sixth-grade plaintiff.  The abuse itself occurred outside of school, but the plaintiff alleges that the school district was deliberately indifferent to the fact that the abuse and her reporting of it subjected her to continued harm while at school. For one matter, the school did not take steps to expel the 9th grader, which created the opportunity for the plaintiff to encounter him in space that the middle school and high school shared. Additionally, the school did not respond to repeated requests from the plaintiff's parents to intervene in harassment that the plaintiff was enduring at the hands of some sixth-grade peers, including the perpetrator's sister. The court agreed that based on these claims it is possible for a jury to conclude that the school district was deliberately indifferent and liable under Title IX. Its ruling allows the case to continue on to trial.  Doe v. New Fairfield Bd. of Educ. 2016 WL 310720 (D. Conn. Jan. 26, 2016)

A school district in Indiana must continue to litigate a former student's claims that school officials' tolerance of hazing on the boys' swimming team violated Title IX as well as his constitutional rights. In denying the school district's motion for summary judgment, the court determined that a jury could find based on the evidence in play that the school tolerated conduct among boys that it would not have tolerated among girls, a finding that would subject the school to liability under Title IX. Because the plaintiff alleged that the school officials' indifference to hazing was "because of sex" it was not fatal to his claim that his additional allegations that the hazing itself was "because of sex" was not supported by evidence. J.H. v. School Town of Munster, 2016 WL 427351 (N.D. Ind. Feb. 03, 2016).

An Oklahoma school district prevailed on summary judgment in a case filed by a female student who was targeted for an inappropriate relationship by her history teacher.  The student argued that the school should have been on notice of the teacher's conduct as a result of an incident in which a custodian discovered the teacher and student together in a locked classroom with the lights off.  While in fact that teacher had been kissing and touching the student behind the locked door, the teacher provided a plausible explanation for this situation when he was asked about it by school officials (the locked door he said was the result of on active shooter drill, the lights off because he was using a projector). In light of the teacher's response, the court determined that the custodian's discovery of the locked/dark classroom did not provide the school district of actual notice of the teacher's inappropriate conduct and that it was reasonable to take no further action against the teacher other than warn him not to be alone with students in the classroom. Later, when school officials received additional evidence of the teacher's conduct, they acted immediately to suspend the teacher and begin a disciplinary process that ultimately led to his resignation, thus fulfilling their obligation under Title IX to respond reasonably to actual notice of a threat of sexual harassment,.   Roof v. New Castle Public School District No. 1, 2016 WL 502076 (Feb. 8, 2016).

A federal magistrate in Texas granted summary judgment to a school district after determining that the plaintiff did not have sufficient evidence that school district's response to peer harassment was tantamount to deliberate indifference.  The plaintiff, an 11-year-old boy, was harassed by fellow students because he had "breasts like a girl" and other physical characteristics that allegedly made him appear less masculine and gay to his classmates.  In light of uncontested evidence that the school district took some disciplinary action in response to reports of bullying, the magistrate determined that school officials could not have been indifferent, even though the response was (at least arguably) too weak to curtail the bullying in question. Nor did it matter that the school district (again, arguably) failed to comply fully with its own anti-bullying policy. Concluding that the school district "should have done more" does not determine whether the school was deliberately indifferent. Drawing this distinction, the magistrate determined that the school district could not be liable under Title IX.  K.S. v. Northwest Indep. Sch. Dist., 2015 WL 9450853 (E.D. Tex. Dec. 1, 2015).

11th Circuit Reverses Summary Judgment in "Rape Bait" Case

In 2013, we blogged about a district court decision that a school district in Alabama could not be liable under Title IX for its participation in a teacher's aid's plan to use an eighth grade girl as, essentially, bait to catch a habitually-offending male student "in the act" of soliciting female classmates for sex. The plan called for the female student to agree to the male student's proposal to meet in the bathroom, where officials would intervene before any sexual assault occurred. However, no timely intervention occurred and the female student was raped.  We noted with alarm the district court's exceedingly narrow application of the deliberate indifference standard, since there was a genuine factual dispute that the assistant principle was aware that a female student was under a serious threat of sexual assault and did nothing to stop it.

Thankfully, this decision has been reversed on appeal.  Last week, the Eleventh Circuit Court of Appeals ruled that there was enough evidence to warrant a trial on the crucial elements for institutional liability, i.e., actual notice and deliberate indifference.  There were enough facts in evidence that a jury could potentially find that shool district officials had actual notice of the threat posed by male student.  Namely, the school board admitted that officials knew of reports that the male student had harassed and assaulted other female students in past, and while it was disputed whether the Assistant Principle knew about the sting operation in progress, a jury could potentially find that this was so.

The court also thought there was enough evidence that a reasonable jury could find that school officials were deliberately indifferent -- both to the threat of rape and in their response to the rape after it occurred.  Not only was deliberate indifference suggested by officials' failure to intervene in the sting operation, but also, the court noted, its inadequate teacher training on sexual harassment, its ineffective disciplinary policies and record keeping practices, and the fact that the rapist himself was sometimes unsupervised during his in-school suspension, and the principal's failure to revise any policies after the rape had occurred. 

The plaintiff's Title IX claim will be allowed to proceed to trial.

The court also reinstated the plaintiff's constitutional claims against the principal, assistant principal, and teacher's aid as individuals.

For some other commentary about the case see here. 
For a copy of the decision, see here, or:

Hill v. Cundiff, 2015 WL 4747047 (11th Cir. Aug. 12, 2015)

Government Files Brief in Support of Transgender Student's Title IX Lawsuit

The U.S. Department of Education, acting through the Department of Justice, has filed a brief in support of a transgender student's lawsuit against his Michigan school district.  The student, a sixth grader in the Wyandotte public schools, alleged that school officials refused to refer to him by his male name and pronoun or allow him access to the boys' bathroom, and did not intervene to protect him from the harassment of his peers. 

The government's brief (officially a "statement of interest" as the government is not a formal party to the litigation) argues that Title IX is applicable to his case.  Though the statute by its terms limited to sex discrimination, the government urges the court to interpret sex discrimination to include discrimination on the basis of gender nonconformity, gender identity, and transgender status, as other courts and federal agencies have done in applying sex discrimination provisions of other antidiscrimination statutes such as Title VII. Importantly, the government emphasizes that any of these grounds may be the basis of a sex discrimination claim.  This is important because gender nonconformity, while the least controversial and most precedent-supported theory of sex discrimination, without more, would likely provide this plaintiff incomplete relief.  Specifically, it may not support his right to use the male restroom -- because when the school refuses to treat him like the other boys in that regard, they are discriminating against his status as a transgender person or someone with a transgender gender identity, not because he doesn't dress or act like a stereotypical member of his natal sex (female). Thus, it would be most helpful to this plaintiff -- and other transgender plaintiffs future -- for the court to endorse the government's broader interpretation of sex discrimination, one which would allow Title IX to serve the basis for challenging discrimination targeting a student's gender identity or transgender status. 

Springfield, Massachusetts Middle School Could Stand Trial Over Student's Sexual Assault

A federal district court judge in Massachusetts denied the Springfield School Committee's motion for summary judgment on a Title IX filed by the mother of a female student who was sexually assaulted by a male classmate at Duggan Middle School. The mother's complaint alleged that school officials were on notice due to a prior incident of inappropriate sexual contact by that same male student.  After that initial incident, teachers separated the students and ensured no further contact for the remainder of the school year.  But the next school year, both students were placed in the same class and no warning provided to their teacher about the prior incident.  The teacher allowed the students to be unsupervised together, which the male student took as an opportunity to commit sexual assault on two occasions.

The court determined that the mother's allegations on behalf of her daughter state a claim for institutional liability under Title IX, which requires plaintiffs to prove that school officials had notice of a threat of sexual harassment or assault and responded with deliberate indifference. Applying this standard, the judge determined that, despite the school officials' initial vigilance, their failure to provide any continuity the following year could, if proven, satisfy the standard.

The next step in this case will likely be a conference to set a timeline for trial. In many cases, however, surviving the defendant's motion for summary judgment provides the plaintiff with greater leverage for a settlement.

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). 

Wisconsin Middle School's Single-Sex Classes Targeted for Complaint

The ACLU has filed a complaint with the Department of Education's Office for Civil Right, alleging that Somerset (Wisconsin) Middle School's single-sex education program for fifth-graders violates Title IX.  Students in Somerset's single-sex program are separated by sex for all core subjects, as well as extracurricular activities and non-academic periods like lunch and recess.

The ACLU's complaint alleges that this program violates Title IX because administrators have provided inadequate justification for the program.  They claim to be using single-sex education to introduce "academic rigor" that will help close the gender gap on certain standardized tests, as well as to quell behavioral problems, but cite no data to substantiate either problem.  The ACLU also chides officials for citing no "valid" evidence suggesting that separating students by sex is an effective means for solving either problem.  Though they have been separating some fifth graders by sex since 2008, the school puts forward no evidence that it has made any difference on test scores or disciplinary rates so far.  Instead, the complaint alleges, school officials justify sex-separation by relying on "debunked" pseudoscience on the different hardwiring of boys and girls brains, and the related "controversial" work of single-sex education proponents Leonard Sax and Michael Gurian, who advocate for teaching boys and girls in drastically different manners based on sweeping and questionable generalizations. The complaint cites some of Sax and Gurian's recommendations on which Somerset officials purport to rely:

• Teachers should smile at girls and look them in the eye. However, teachers must not look boys directly in the eye or smile at them. 
• Boys do well under stress, and girls do badly, so girls should not be given time limits on tests. 
• Girls should be allowed to take their shoes off in class because this helps them relax and think better. 
• Literature teachers should not ask boys about characters’ emotions, and should only focus on what the characters actually did. But teachers should focus on characters’ emotions in teaching literature to girls. 
• Boys should receive strict discipline based on asserting power over them. Young boys can be spanked. Girls should never be spanked, but instead should be disciplined by appealing to their empathy. 
• A boy who likes to read, who does not enjoy contact sports, and who does not have a lot of close male friends has a problem, even if he thinks he is happy. He should be firmly disciplined, required to spend time with “normal males,”and made to play sports.

The ACLU argues that, although Title IX regulations do allow schools to engage in single-sex education in certain conditions, Somerset's program falls outside of what is permitted and thus constitutes sex discrimination under the law.  Single-sex programs may only be used to address a particular, identified need, and moreover must be substantially related to that need. If the ACLU's factual allegations prove true, the school does not appear to have met this standard, as it provides only a vague justification for separating students and no evidence that separation is benefiting the students in any way.  Additionally, the Title IX regulations prohibit schools from relying on "overly broad generalizations about the different talents, capacities, or preferences of either sex."  Somerset's fifth-grade curriculum seems to do exactly that.

The complaint requests that OCR conduct an investigation and ensure that school district correct any violations found by "reverting to a coeducational structure."  The ACLU has attained that result in filing similar complaints against other school districts (e.g. here and here)  We'll see if the Somerset case follows the same course.

Settlement Ends Single-Sex Classes in Wood County, West VIrginia

A federal court in West Virginia recently approved a consent decree between the ACLU and the Wood County Board of Education, which prohibits the Board from reinstituting single-sex education in core classes at Van Devender Middle School.  Last summer, the ACLU filed a lawsuit on behalf of parents whose children were assigned to single sex classes.  A federal court granted the ACLU's preliminary injunction after determining it was likely they would prevail in the argument that the program violates the requirements under Title IX that single sex education be "completely voluntary."  Wood County's was not, because parents had to opt their children out, rather than opt in.  The court's opinion also emphasized that single-sex public education must be able to withstand heightened scrutiny under the Equal Protection Clause.  It cannot be rooted in stereotypes and pseudoscience, as Van Devender's program appears to have been. 

This decision paved the way for the eventual settlement, approved Monday, that prohibits the Board from instituting single-sex classes for two years.  For the following three years after that, the Board can only implement single-sex classes after it provides notice to the plaintiffs and receives approval from the court, a valuable prophylactic against the Board's future implementation of another mandatory, broad, and poorly justified single-sex education program.

ACLU Challenges Single-Sex Classes in Wisconsin

The Wisconsin chapter of the ACLU has filed a complaint with the U.S. Department of Education, challenging single-sex classes at one middle school and two elementary schools. Riverview Middle School in Barron separated fifth-grade girls and boys in language arts and math classes in the past and plans to do so again next year.  The two elementary schools, both in Beloit, have been offering single sex classes in multiple subjects.  The ACLU alleges that all three single-sex programs violate Title IX because the schools lack the adequate justification required by law -- instead relying on discredited science and sex stereotypes.

Earlier this year, the ACLU convinced a high school in La Crosse, Wisconsin, to voluntarily suspend its girls' English and math classes, that were also justified solely by pseudoscientific generalizations about the ways girls learn.   

The Wisconsin ACLU's efforts are consistent with the ACLU's nationwide campaign to "teach kids not stereotypes" -- an effort that has generated similar challenges to single sex programs around the country.   

ACLU Files Complaints Against Single-Sex Classes Idaho and Alabama

Earlier this month, the ACLU filed formal complaints (see here and here) with the Department of Education's Office for Civil Rights, challenging single-sex educational programs at Middleton Heights Elementary in Middleton, Idaho and Huffman Middle School in Birmingham, Alabama.


Middleton's program, in place since 2006, separates girls and boys into separate classrooms and teaches differently to each group.  Boys' classrooms incorporate exercise and movement, while the girls are given a quiet environment.  Boys are not seated face-to-face, as girls are, on the theory that "boys are more competitive and should not be forced to make eye contact." Boys receive more explanation for assignments, and the school makes efforts to bring in "male role models" to combat concerns about them having too many female teachers.  The school does not inform parents that the program is voluntary, and many believe they did not have a choice to opt out, which the law requires.  One final objection to Middleton's program is that it has not caused any academic improvement, belying its justification in the first place.

In 2010, Huffman Middle School began separating boys and girls for all classes and activities, even lunch. It offers no coeducational alternative, which is a clear violation of Title IX's regulations on single-sex education.  The curriculum in boys' classes calls for "stressing 'heroic' behavior that shows what it means to 'be a man.'" The ACLU complaint also criticizes the school for relying on a book "that teaches that boys are better than girls in math because their bodies receive daily surges of testosterone, while girls have similar skills only 'a few days per month' when they experience 'increased estrogen during the menstrual cycle.'"  Huffman's program, like Middleton's is not supported by any evidence that academic achievement has improved. 



According to its website, the ACLU wants OCR to investigate these cases and bring them into compliance with Title IX regulations, which only allow single-sex programs that have an academic justification.  The organization also wants OCR to clarify to school districts that sex stereotypes such as those reflected in Huffman and Middleton's curricula are not justifications for segregation under the law.  

Court Dismisses Claims in Bully-Suicide Case, Again

For the second time this year, a federal district court in Texas has dismissed claims against the Joshua Independent School District filed by the estate and family of Jon Carmichael, a former middle schooler who committed suicide in 2010 after enduring severe bullying at the hands of his peers.  As we noted back in January, the court dismissed the Title IX claims because the complaint did not contain enough detail to warrant a finding that the bullying was "because of sex."  However, the court gave the Carmichaels the opportunity to amend the complaint and try again.  Last week, the court ruled that even as amended, the complaint does not sufficiently warrant consideration under either Title IX.  It also dismissed, for the second time, the Carmichael's constitutional claims.  This is a most unfortunate decision.

Here is how the complaint describes the pinnacle of Jon's abuse:

A day or so before Jon's death, he was once again placed into a trash can. This time the acts of the bullies—all members of the middle school football team—escalated beyond just their regular assaults of Jon and now into a degrading sexual assault. Before they placed him in the trash can, they stripped him nude and tied him up. Then, they proceeded to parade a group of boys before him while calling him “fag”, “queer”, “homo[”], and “douche.” A number of students in the locker room observed this deplorable behavior. Jon was, of course, devastated by this assault that placed his emerging sense of manhood under direct public attack.

Even more shocking than the incident itself is the fact that Jon's fellow student, J.R., videotaped the attack and uploaded it to YouTube. Sometime later, a teacher who had learned of the incident and video directed J.R. to remove it from the website and destroy it. The teacher did not report the incident. It is highly unlikely that if a female student had been the object of such an attack, whether at the hands of male or female students, the incident would have been investigated and reported and the bullies would have been punished. Also, this was another instance where the coaches at Loftin, including Defendant Strickland, employed different customs, practices, and procedures when members of the football team were the perpetrators of an assault.

According to this court, "this single incident, amid numerous ones that contain no hint of gender-based animus, is not enough to state a facially plausible student-on-student harassment claim." The court makes much of the fact that plaintiffs do not allege that Jon was targeted because he was perceived by his harassers to be gay.  Thus, the words the bullies used during the trash can incident did not, to the court, mean anything related to Jon's gender or gender conformity. This represents an overly-narrow view of sex discrimination as applied in the context of bullying.  Especially with the added detail about football players perpetrating, and getting away with, the most severe incident, it is easy to see that bullying is being used a tool to police compliance with the dominant version of masculinity, which Jon Carmichael did not meet, and that makes it discrimination "on the basis of sex" protected under Title IX.

The court also disregards as speculation the plaintiff's claims that a female victim in the same circumstance would have been treated differently, which, in addition to the gender nonconformity theory, is another way of demonstrating that a bullying case involves discrimination on the basis of sex.  This seems unduly harsh.  I think the plaintiffs should have had the opportunity to convince a jury that this was, indeed true.  It seems reasonable, especially in light of  the alleged statement by school officials that "boys will be boys," that a gender double-standard was at play.  

The court did not give the plaintiffs yet another chance to amend their complaint.  Instead, the next available step for the Carmichael family is to appeal the lower court's decision and seek to have an appellate court reinstate their case. That's the outcome I'm rooting for. 


Decision: Estate of Carmichael v. Galbraith, 2012 WL 4442413 (N.D. Tex. Sept. 26, 2012). 

ACLU Challenges Single Sex Classes in West Virginia Schools

Yesterday, the ACLU filed a lawsuit against Wood County Board of Education in West Virginia, challenging its sex-segregated education at Van Devender Middle School.  The lead plaintiff is a parent whose children are adversely affected by the gender stereotyping at that school. According to the complaint, classrooms and teaching methods reflect gross generalizations of questionable validity, such as that boys learn best in cool, bright rooms where they can move around.  The girls' classrooms at Van Devender, in contrast, are warm and dimly lit, and students must remain seated and always inside during instructional periods, compared to the boys who sometimes have class outside.  For one of the plaintiff's daughters, who has attention deficit disorder, the stereotypes about girls' quiet learning styles are hard to endure. Another is visually impaired and has greater difficulty seeing in the dim lighting of the girls' classroom.

The ACLU's legal argument is that the segregated classes at Van Devender violate the Constitution's Equal Protection Clause, which requires sex-based classifications to be substantially related to an exceedingly persuasive government objective and not rooted in broad generalizations.  It also argues that the school violates Title IX and its implementing regulations.  The Department of Education's regulations require that single-sex programs must be voluntary and offer an equivalent co-ed alternative, which Wood County does not, and that they must either be intended to "improve educational achievement" through "diverse educational opportunities" or be motivated by "particular, identified educational needs."  The ACLU argues that the pseudoscience underlying Wood County Board of Education's pedagogical choices do not satisfy either test.  

The ACLU seeks an injunction against the continuation of single-sex classes at Van Devender.

Sexual Harassment Roundup

Here are summaries of some recent Title IX sexual harassment cases making their way through the courts:

The 11th Circuit Court of Appeals affirmed a decision dismissing a case against a school district deriving from a female teacher's sexual harassment and abuse of a 13-year old male student.  The court determined that the Principal did not have notice of the ongoing harassment nor other signs that the student was at risk.  The Principal, Whatley, did know of past complaints against the teacher, Elizabeth Gaddy, that she had crossed boundaries with students by sending them text messages, but the court rejected that this was sufficient notice of potential sexual misconduct.  The court also summarized all of the other things that the Principal knew about, before determining that that the plaintiffs did not satisfy the notice requirement for a harassment case under Title IX:

Whatley knew about complaints from teachers and parents that Gaddy was constantly sending O.K.K. [the student-victim in this case], and other students, text messages. He knew that Gaddy bought Christmas gifts for O.K.K. that J.F.K. [the victim's parent, the plaintiff] thought were inappropriately expensive, and that Gaddy took O.K.K. home in her car against J.F.K.'s wishes. He knew that Gaddy had been shopping for a baseball uniform despite having no sons. He knew that Gaddy and O.K.K. had been seen sharing a towel at a pool party and spending time alone inside the house, and later sharing a blanket with their legs touching on Gaddy's sofa. He also knew that Smith thought that Gaddy was too fond of O.K.K. and that another student's parent worried that Gaddy was “possessive” of O.K.K. by not letting any other girl “like” O.K.K. but her daughter. He knew that several parents, including those of cheerleaders, were complaining of Gaddy's excessive involvement in their children's lives and that Gaddy called some female students inappropriate and offensive names. He also knew that O.K.K.'s parents wanted Gaddy to stay away from him, although they told him they did not believe anything was going on between O.K.K. and Gaddy. It appears clear to this court that Whatley knew Gaddy's conduct was inappropriate, devoid of professionalism, and reeked of immaturity; however, despite this, her known conduct was not of the same type of conduct of a sexual nature.

Thus, it seems that in the 11th Circuit, the bar for actual notice is quite high, even in cases  involving harassment by teachers as opposed to fellow students.  J.F.K. v. Troup County Sch. Dist. 2012 WL 1538370 (11th Cir. May 3, 2012). 

Elsewhere, a federal court denied a school district's motion to dismiss a case involving claims of sexual harassment by a high school teacher.  The court agreed that a genuine issue of material fact existed as to whether the school district was on notice that a particular teacher posed a risk of harm to students, including the plaintiff, whom the teacher locked in the computer lab and attempted to touch in a sexual manner.  Earlier in the school year, the principal received a report that the teacher had touched another student's leg inappropriately, and responded to this report by reporting the matter to Child Protective Services, which did not take further action.   The Principal did not initiate an internal investigation, other than to keep a closer eye on the teacher in question.  Then, the Principal went on leave, without sharing his suspicions of the teacher with anyone else.  The incident computer lab incident involving the plaintiff occurred during this time. On these allegations, the court determined that a jury could find that the school district had sufficient notice to which it failed to adequately respond, so the court refused to dismiss the case and will instead let it proceed to trial.  C.B. v. Tibbetts, 2012 WL 1448308 (D. Ind. Apr. 26, 2012).

In another case, a court denied a plaintiff a preliminary injunction ordering the defendant school district to transfer her to a different high school outside of the school district, which the plaintiff was seeking as a response to sexual harassment and assault by other students she had suffered in her present school. The court determined that the plaintiff failed to demonstrate a likelihood of success on the merits of her case because school officials had responded to incidents about which they were made aware.  In particular, after learning that the plaintiff had been sexually assaulted by other students on two occasions in the past (a year prior, and a year-and-a-half prior, respectively) district officials responded by taking immediate steps to ensure the student's present safety, including making sure that the student did not have classes with either perpetrator.  Five months after this report, school officials worked with the plaintiff's parents to file a formal grievance with the school district's Title IX officer. That triggered an investigation in which both alleged perpetrators, along with other potential witnesses, were interviewed. The investigation did not produce sufficient evidence to warrant expelling either student.  But the district did provide or offer numerous other accommodations to the plaintiff, including counseling and that a school employee "shadow" the plaintiff to address her concerns for safety, were offered to the plaintiff.  Emphasizing that the law does not require school districts to  provide a particular response, just a reasonable one, the court denied the plaintiff's request for a preliminary injunction requiring the school to transfer her out of district. K.F. ex rel. C.F. v. Monroe Woodbury Cent. Sch. Dist., 2012 WL 1521060 (S.D.N.Y. Apr. 30, 2012). 

Pregnancy Discirmination Lawsuit Filed in New Mexico

Last week the ACLU filed a federal lawsuit on behalf of an eighth-grade student at Wingate Elementary School in Fort Wingate, New Mexico, for discriminating against the plaintiff, Shantelle Hicks, on the basis of her pregnancy in violation of Title IX and constitutional law. According to the complaint, school officials initially told Shantelle. that she could no longer attend school after she told them she was pregnant. They encouraged her to enroll in an alternative high school with a program for pregnant teens. However, when Shantelle asserted her right to remain in school -- Title IX regulations allow students to enroll in special programs for pregnant students, but only on a voluntary basis--school officials endeavored to drive her out by humiliation. At an assembly of the entire middle school, school officials announced Shantelle's pregnancy, which had been private matter until then.

The complaint alleges violations of Title IX arising from both the school's decision to exclude Shantelle from Wingate and from the announcement of her pregnancy as retaliation for asserting her rights to remain in school. The complaint also alleges that the school's disclosure violated her due process right not to have private information revealed, as well as violating her First Amendment right by attempting through retaliation to deter her from asserting her right to continue to attend school. The lawsuit seeks damages from emotional harm, declaratory relief, and an injunction requiring school officials to attend training about pregnancy discrimination.

Wingate Elementary is a boarding school run by the federal Bureau of Indian Affairs.

Sexual Harassment Roundup

Here are summaries of three recent decisions in Title IX sexual harassment cases from around the country.

As reported here, a federal judge will let the mother of a bullied middle school student continue to pursue her lawsuit against the Cypress-Fairbanks (Texas) Independent School District, having denied the district's motion to dismiss her claims under Title IX. The bullied student, Asher Brown, committed suicide in 2010 after enduring two years of bullying and harassment by his peers, who targeted Brown for his perceived sexual orientation among other reasons. Brown's Asperger's syndrome challenged his ability to interact socially with his peers. Additionally, Brown was small, not athletically inclined, talked with a lisp, and pigeon-toed -- a condition that caused him to walk with a "sashay." The court determined that the plaintiff sufficiently alleged that Brown was targeted because of sex, in that the bullies' perception of Brown's homosexuality was rooted in his gender nonconforming behavior, as evidenced by the gay slurs and other sexual behavior that they used to taunt him. The court also accepted plaintiff's allegations that the school district was on notice of the harassment, notwithstanding that the middle school principal did not know, because Brown and his parents complained regularly to counselors, teachers, and other school officials with authority to take corrective action. They further allege that in response to their complaints, no action was taken to address the bullies or protect Brown from further harassment. Barring settlement, a trial will take place likely next year. Brown v. Ogletree, 2012 WL 591190 (S.D. Tex. Feb. 21, 2012).

Another federal court dismissed Title IX claims against Blackburn College, in Illinois, stemming from the rape of a female student, the plaintiff, by an unknown attacker. According to the court, undisputed facts demonstrate that the college did not have actual notice of the threat. While agreeing with the majority of courts that the threat of harassment need not be "plaintiff-specific," the court nevertheless found insufficient basis to conclude that college was aware of a risk in this case, as prior instances of campus rape known to officials at the time of plaintiff's assault did not involve unknown attackers. Nor was Blackburn indifferent to sexual harassment after plaintiff reported the rape to college officials. College counselors met with the plaintiff on the night of the assault and many times thereafter, officials held a town hall meeting about campus safety, assisted her with off-campus resources, and offered academic accommodations. This response is not deliberate indifference as required for Title IX liability to attach. Doe v. Blackburn College, 2012 WL 640046 (C.D. Ill. Feb. 27, 2012).

A federal court dismissed Title IX and other claims against the District of Columbia arising out of a teacher's alleged sexual relationship with a high school student. According to the court, the student-plaintiff did not allege that she reported the relationship to anyone. Though her pregnancy was known, she did not report nor was anyone aware that the pregnancy resulted from a sexual relationship with a teacher. Once the District officials did receive report of the relationship, they investigated the matter and ultimately found the teacher not liable. According to the court, "In light of the breadth of this investigation and its inconclusive results, DCPS can hardly be said to have acted with deliberate indifference by not firing Weismiller [the teacher] then. Finally but significantly, Plaintiff does not allege that further sexual harassment occurred as a result of [DCPS's] deliberate indifference." Blue v. District of Columbia, 2012 WL 746400 (D.D.C. Mar. 8, 2012).

Sexual Harassment Roundup

A federal district court in Massachusetts has refused to dismiss Title IX and other claims against Palmer Public Schools stemming from a male guidance counselor's sexual relationship with a female high school student. According to the court, plaintiff sufficiently alleged the required notice and deliberate indifference. In particular, the plaintiff alleged that prior to the guidance counselor's sexual affair with her, school officials had notice of allegations that he had had sex with another student and were concerned about his tendency to get "too cozy" with students. Yet, he was not disciplined or supervised in any way to protect female students. The only actions school officials did take were stopping a female student from placing her legs on his, directing him to remove pictures of female students from his office wall, and "contemplating—but never effectuating—" transferring him to the middle school. Doe v. Fournier, 2012 WL 591669 (D. Mass. Feb. 22, 2012).

In contrast, a federal district court in Washington held that plaintiffs did not sufficiently allege that school officials had notice and were deliberately indifferent to signs that a school counselor posed a risk to students prior to having molested the plaintiffs. Plaintiffs had argued that school officials should have been on notice of this risk because they knew that the counselor had once taken a student away from school during lunch hour (with the parent's permission) and that the counselor had once massaged a student in his office. These allegations, if true, do not provide a sufficient basis for the court to conclude that school officials had actual notice that the counselor was or could become a child molester. Doe v. Coleville Sch. Dist, 2012 WL 554430 (E.D. Wash. Feb. 21, 2012).

The Court of Appeals for the Sixth Circuit recently affirmed a lower court's decision to dismiss a Title IX case against a Michigan school district brought by a plaintiff alleging that the school was indifferent to the risk of sexual assault posed by another student. The appellate court rejected plaintiff's argument that the perpetrating student's lengthy history of disciplinary policies, including acts of sexual harassment that took place at other schools, put the school on notice and triggered a responsibility to protect the plaintiff from assault. Interpreting the notice requirement more narrowly than other courts, this court held that acts of harassment against other victims are not sufficient to put a school district on notice of the risk of harm in a particular plaintiff's case. Pahssen v. Merrill Community Schools,2012 WL 333779 (6th Cir. Feb. 3 2012).

Lastly, a federal district court in Louisiana dismissed Title IX charges against a school stemming from the sexual assault of a female middle school student plaintiff by three male peers. The plaintiff argued that school officials were informed of the first incident of harassment, which occurred in January 2008, but did not take sufficient steps to protect her from a second incident, which occurred in March of that same year. The court reasoned that while, in retrospect, more could have been done to punish the perpetrators and protect the victim, the school's response was not unreasonable in the moment, having required each perpetrator to serve a four-day out-of-school suspension followed by a period of in-school suspension of 14 days for the primary perpetrators and two days for the less-responsible perpetrator. However, the court agreed that the plaintiff could continue to litigate her retaliation claim, based on evidence that her residency was investigated and she was expelled from the district after complaining about the January incident, as well as evidence suggesting that the plaintiff was singled out for such investigation. Pemberton v. West Feliciana Parish School Bd.,2012 WL 443860 (M.D.La., Feb. 10, 2012).

Sexual Harassment Roundup

Here is a roundup of some recent sexual harassment cases.

• Title IX claims based on a teacher's inappropriate relationship with a student failed for lack of actual notice. "The complaints against Sweet were nothing more than specific facts that she was a poor teacher. But, mere suspicions are insufficient to prove actual knowledge that Sweet engaged in misconduct." Doe v. St. Francis Sch. Dist., 2011 WL 6026612 (E.D.Wis. Dec 05, 2011).

• A district court dismissed Section 1983 claims against a middle school principal in his individual capacity, finding that the complaint against him did not allege conduct that would put him outside the realm of qualified immunity from suit. Specifically, the court held that the complaint did not satisfy the standard set forth in the Supreme Court's ruling in Ashcroft v. Iqbal because it did not specifically allege that the principal acted with discriminatory intent. C.C. ex rel. Andrews v. Monroe County Bd. of Educ., 2011 WL 6029758 (S.D.Ala. Dec 05, 2011).

• A district court in California dismissed most of the claims arising from the harassment of an openly-gay student who committed suicide. Specifically, the plaintiff--the deceased student's mother--did not allege sufficient facts to support a conclusion that teachers participated in the sexual harassment of her son. Some of the plaintiff's allegations of harassment by teachers failed because it was not clear they were targeting the victim because of gender non-conformity; the remainder failed because alone they were not sufficiently "severe or pervasive" as required for institutional liability to attach. Other claims under 1983 and the Equal Protection Clause against school district officials in their individual capacity, based on survived a motion to dismiss. Walsh v. Tehachapi Unified School Dist., 2011 WL 5156791(E.D.Cal. Oct 28, 2011).

And this decision is several months old, but it just showed up on my radar, and is worth noting:

• A district court in New York dismissed a lawsuit against a school district in which the plaintiff alleged she was harassed by fellow students after another posted photos of her in a sexual encounter with another female. The district court confirmed that Title IX does not cover sexual orientation, so harassment in which the plaintiff was called derogatory names for a lesbian was not actionable. Nor did school district officials have actual notice that the pictures had been posted (on a non-school-related website) or that they had been set as the "wallpaper" on school district computers, and when they did find out, they acted promptly to remove the pictures from the internet and the school computers. Finally, "defendants' purported failure to immediately alert plaintiff's parents or “the authorities” to the existence of pictures of plaintiff on the internet does not establish a triable issue of fact because, inter alia, such failures did not subject plaintiff to harassment, or make her more vulnerable to it." Tyrrell v. Seaford Union Free School Dist., 792 F.Supp.2d 601 (E.D.N.Y. Jun 01, 2011).

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.

Pittsburgh School District Ends Single-Sex Classes

The superintendent of the Pittsburgh Public Schools announced her recommendation to end single-sex classes at George Westinghouse Academy, after becoming "uncomfortable" with how staff where being trained to rely on gender stereotypes.

The ACLU and Women's Law Project had reportedly threatened to sue the district over its plans to convert George Westinghouse, which educates grades 6-12, into an entirely sex-segregated institution, a move that exceeds the scope of single-sex education allowed under Title IX regulations and that was justified by an erroneous conclusion that “research solidly indicates that boys and girls learn differently.” ACLU's press release on the matter also sheds some light on what might have been making the superintendent uncomfortable: teachers were apparently being trained to teach boys in ways that emphasize “characteristics of warrior, protector, and provider” and to provide “space/time to explore things that young women like [including] writing, applying and doing make-up & hair, art.”