OCR Investigates Complaint Against School's Transgender Bathroom Poicy

The Department of Education's Office for Civil Rights has opened an investigation into the school district in Decatur, Georgia, based on allegations that the district's transgender-inclusive bathroom policy lead to the sexual assault of five-year-old cisgender girl in the girl's bathroom at one of the district's elementary schools. The complaint also alleges that it compromises the privacy of girls by exposing them to "the problem of Peeping Toms."

Here is more detail about the alleged assault, as described in the the complaint:

[I]n November 2017, a boy known to the school administration to identify as “gender fluid” (“the Assailant”) was permitted—pursuant to and as a direct result of the Policy—to enter the girls’ room while [Victim] was there. While the two young children were in the girls’ restroom alone together, the Assailant confronted [Victim], pushed her against a wall, and forcibly touched her genitals despite her protests, causing her both pain and fear. This sexual assault (“the Assault”), which was a foreseeable result of the Policy and would not have happened but for the Policy, discriminated against [Victim] based on her sex and created a hostile and intimidating environment in which [Victim] must fear repeated incidents of sexual harassment or assault in the future.

According to the Washington Post, "City Schools of Decatur officials have contested the version of events laid out in the complaint," including by "contradicting claims that the classmate the girl identified is gender fluid." It also noted that "a social service agency investigation determined the girl's allegations were 'unfounded.'"

This is an investigation we will watch closely and with concern. The Department of Education repealed the previous administration's guidance that requires schools to accommodate transgender students according to their gender identities in bathrooms and locker rooms, but it has not prohibited schools from doing so.  If the agency finds that the school has violated Title IX, it could signal the agency's position that inclusive bathroom policies violate Title IX. It would also create a conflict between the agency and judicial interpretations of Title IX which have in recent years consistently supported transgender students rights in bathrooms, and which have rejected arguments on behalf of cisgender girls that the inclusion of transgender girls somehow violates their rights.

Litigation Roundup: School Districts Lacking Notice

In several recent cases, courts rejected claims that school districts were liable for sexual misconduct by employees or students due to lack of notice.  Here are case summaries:

The Fifth Circuit Court of Appeals reversed a district court's judgment in favor of a plaintiff who sued the South San Antonio Independent School District after having been molested by the vice principal, later principal, of the elementary school he attended.  After the jury awarded the plaintiff $4.5 million, the school district moved to dismiss the case as a matter of law and appealed an adverse ruling on this motion to the appellate court.  A school district is liable for sexual misconduct of its employees if someone with authority to take corrective action has notice of the misconduct and responds with deliberate indifference. In this case, the plaintiff argued that because the perpetrator was the vice principal  -- someone with authority to take corrective action -- then the notice requirement was satisfied.  However, the Fifth Circuit disagreed, concluding that the perpetrator's knowledge of his own misconduct does not qualify. The notice requirement is meant to limit school district liability to only those cases where those in authority ignore sexual misconduct that they know is going on, and one does not "ignore" one's own misconduct. Put another way, the court reasoned that implicit in the notice requirement is a requirement that the person to whom notice is given is a person who does not already know that the misconduct is going on.  Otherwise, there is potential automatic liability every time someone with authority is the perpetrator.
Decision: Salazar v. South San Antonio Indep. Sch. Dist., 2017 WL 2590511 (5th Cir. June 15, 2017).

The Eleventh Circuit Court of Appeals affirmed a lower court's decision to dismiss Title IX claims filed against Bibb County (Georgia) school district stemming from the rape of a female special education student, the plaintiff in the case. The facts are terrible: A male student walked into the plaintiff's classroom and told the teacher that another teacher wanted to see the plaintiff. The teacher let her go with him, and he brought her to the bathroom where she was gang-raped by seven male students, none of whom had ever been reported for any kind of sexual misconduct.  For the district to be liable for the rape, however, there must be some prior misconduct that put school officials on notice that the plaintiff was at risk for what happened.  Considering the appeal, the Eleventh Circuit affirmed that it is not necessary for a plaintiff to show that she herself had reported prior incidents, nor that the perpetrators themselves had been the subject of such reports.  Still, however, there must be a reasonable enough similarity between the prior incidents and the plaintiff's rape to put school officials on notice, and the appellate court agreed with the district court that such similarity was lacking here.  There had been prior incidents of sexual assault in the high school; one of which did not involve students in the special education program and so could not serve as notice that students participating in that program were at an elevated risk.  The other did involve special education students, but the circumstances were different as the students involved had been left alone unsupervised in a classroom, whereas here, the perpetrators used deceit to extract the victim from her classroom.  Therefore, there was nothing on which to base a claim that the school district should have acted to prevent the rape that occurred here.
Decision: Jane Doe v. Bibb County Sch. Dist., 2017 WL 2240825 (11th Cir. May 22, 2017).

The parents of an eighth grader can not pursue their lawsuit against the Independent School District of Delaware County (Oklahoma) that stems from a romantic and sexual relationship that occurred between their ninth-grade daughter and her basketball coach, an employee of the district. The federal district court in Oklahoma granted summary judgment to the district on the parents' Title IX claim because their were no allegations that the school district was indifferent to the coach's sexual misconduct that was known to appropriate school officials. Once the principal learned of a rumor that the coach and the student had been locked in a room together, he and the superintendent investigated and quickly got corroboration by the student. The coach was suspended immediately and eventually terminated. The parents argued that school officials actually had notice that this coach posed a threat of sexual misconduct to his players based on prior complaints that a couple of parents had made against the coach.  However, these complaints, which were investigated, did not involve conduct that was predictive of the sexual misconduct that occurred in this case. There had been a complaint that the coach sometimes texted individual players, and sometimes talked about butts in practice. But the investigation revealed that the texts and the comments were related to basketball and reasonably handled by an order to the coach not to text individual players any more. In the absence of deliberate indifference to sexual misconduct that was known or foreseeable to school officials the school district was not liable for damages arising from the the coach's sexual misconduct with the plaintiffs' daughter.
Decision: Callihan v. Indep. Sch. Dist. No. 1., 2017 WL 2783990 (N.D. Okla. June 27, 2017).

Sex-Segregated Elementary School Violate Title IX, OCR Says

An Idaho elementary school may no longer segregate students by sex after the Department of Education's Office for Civil Rights determined that doing so without evidence-based rationale violated Title IX. OCR's investigation was triggered by the ACLU of Idaho, which filed a complaint against Middleton Heights school district in 2013. The ACLU argued that the elementary school's practice of separating boys and girls from first through sixth grade, including even for some nonacademic subjects, was not tailored to the program's stated objective of closing the gender gaps in reading and math proficiency.  For one reason, the program segregated students for more than just math and reading instruction. But even as it applied to reading and math, the school district's rationale was based upon a faulty premise according to the ACLU, which cited evidence that gender gaps in math and reading at Middleton Heights elementary school had been small or nonexistent prior to the segregation program. Instead, it argued, the school district imposed segregation based on impermissibly "overly broad generalizations" and gender stereotypes, such as that boys benefit from a kinetic classroom environment and girls need calm and quiet. The ACLU's complaint criticized the school district for operating on these assumptions and attributing them to entire genders, rather than making an "individualized assessment" to determine which students benefited from which environment.

The school district actually curtailed its decade-long segregation in June, and reportedly had no plans to reinstate it. To make sure, however, OCR is monitoring the school district until 2020.

Another Court Requires School to Accommodate Transgender Student's Bathroom Use

On the heels of a similar post from last week, another federal district court has enjoined a school district's policy of banning transgender students from using the bathroom that matches their gender identity.  An elementary school student in Ohio, a transgender girl, will be able to use the girls' bathroom while she litigates her permanent right to access gender-appropriate facilities under Title IX. Similar to last week's ruling, this court recognized the plaintiff's likely success on the merits of her claim as well as irreparable harm in delaying the remedy of a court order.

Simultaneously, the court in this case considered and denied the school district's motion to enjoin the Department of Education's enforcement of its interpretation that Title IX covers discrimination against transgender student. In this regard, the court's opinion contrasts with a federal district court decision last month that granted the state of Texas's motion to enjoin Title IX's enforcement.  Notably, the court in the current case was not deterred by the purported "nationwide" scope of the Texas injunction:

Because Ohio was not a party to the Texas litigation, and because this litigation was initiated before the Texas court issued its preliminary injunction, the injunction does not apply here. This is also consistent with the Supreme Court’s admonition that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” 

The court in the Ohio case conducted a thorough analysis of Title IX's enforcement mechanisms before determining that it does not have jurisdiction to conduct pre-enforcement review of the Department of Education's policy. Title IX expressly provides educational institutions with the ability to appeal to the federal courts after the agency orders withdrawal of their federal funding for violations of Title IX.  The court determined the availability of post-enforcement judicial review precludes earlier review.  The court drew parallels between Title IX's statutory provisions governing enforcement actions and judicial review to the analogous provisions in another statute (the Mine Act) that Supreme Court concluded similarly precluded pre-enforcement judicial review, while distinguishing it from another statute (the Clean Air Act) in which the Supreme Court permitted pre-enforcement judicial review.

We now have two district courts with competing positions on whether the Department of Education's transgender policy is vulnerable to injunction. Showdown!

Sexual Assault Litigation Update

Numerous Title IX lawsuits have been filed recently, with claims stemming from incidents alleged to involve sexual harassment and sexual assault:

• A female student has sued James Madison University for failing to adequately discipline three fellow students who sexually assaulted her during a spring break trip and then circulated a video of the incident among the student body.  She alleges that the university violated Title IX by delaying the disciplinary process for over a year before finally handing down suspensions that will not kick in until the offending students have graduated.  JMU is facing an investigation by the Department of Education into this same matter, as we have earlier noted. 

• A male graduate of Boston College has sued his alma mater for disciplining him for sexual assault while he was a student.  He alleges that the institution did not provide a fair hearing before finding him responsible for sexual assault and suspending him for three semesters.  The student eventually graduated and unsuccessfully prevailed upon the Boston College to reexamine his case.  The lawsuit seeks $3 million in damages.  

• Parents of a fifth-grade student in Grand Rapids, Michigan, have sued the school district for suspending the boy for ten days for sexual harassing comments and gestures that he allegedly made, and for expelling him after he allegedly touched a female student inappropriately.  The lawsuit alleges that school officials violated the boys' right to due process by not determining in either incident whether the accusations were accurate before taking disciplinary measures against him.  

• A Harvard University professor has sued the institution, alleging that she was denied tenure in retaliation for criticizing its handing of sexual assaults. The plaintiff, anthropology professor Kimberly Theidon, alleges that she was warned that speaking out would hurt her during tenure review; she also claims that she quickly turned from someone who was assured tenure into someone being denied tenure once she began advocating for sexual assault victims. 

• A male student alleged to have sexually assaulted a female graduate student at Stony Brook University, has sued his accuser for defamation and seeks damages of $10 million.  We have already blogged about the accuser's suit against Stony Brook, in which she alleges that the university mishandled her case before finding him not responsible.  She has also sued him directly.

Another California School District Settles Title IX Case Over Harassment and Discrimination of Transgender Student

The Department of Education announced this week that it has entered into a resolution agreement with the Downey Unified School District. The Department had been investigating a complaint filed on behalf of a transgender student who has consistently asserted aspects of her female gender identity since enrolling as a kindergartner in the Downey public schools. The complaint alleged that while she was an elementary student, the student was the subject of discrimination on the basis of gender identity when school officials disciplined her for wearing makeup when other female students were allowed to do so. As part of her punishment, she had to write a letter of apology for making male students uncomfortable. She was also allegedly the victim of  verbal harassment including being called homophobic and sexist slurs by other students on the bus, to which school officials failed to adequately respond. After she fully transitioned to female during her fifth grade year, school officials refused to use her female name.  While some things improved when the student graduated to a middle school that respected the students gender identity, name and pronouns, the student was still subject to peer harassment and the complaint suggested some school-wide measures that were not taken to try foster a more tolerant and inclusive climate.  Based on her experiences in elementary school and middle school, the student wanted assurance going forward that high school administrators and faculty will be responsive to harassment, respectful of her gender identity and expression, and willing to treat her just like any other girl.

The resolution agreement addresses the student's concerns for the future by requiring the school district to "continue to treat the student the same as other female students in all respects in the education programs and activities offered by the District, including access to sex-designated facilities for female students." The district is prohibited from disciplining the student from "appearing in a manner that does not confirm to stereotyped notions of masculinity and femininity" and must remove all past such disciplinary notations from the student's records. Additional measures the school district will have to undertake include hiring a consultant to help the school address the climate issues giving rise to harassment, conducting mandatory training for district administrators to ensure they are responding appropriately to gender non-conformance- and gender-based harassment, and reviewing its policies to ensure that transgender students are provided every opportunity to participate in all programs "in a manner that does not discriminate based on sex, gender identity or gender expression."

Like the Arcadia school district resolution, which was similar, this resolution is an important signal of a school district's obligation under Title IX to protect equal rights of transgender student.  While the requirements that school districts appropriately respond to gender-non-conformance-based harassment is not a new or groundbreaking application of Title IX, other aspects of the resolution are cutting edge. In particular, the requirement to treat transgender student like any other girl with respect to sex-designated facilities is part of an emerging definition of sex discrimination that enhances Title IX's effectiveness to challenge transgender student's exclusion from the bathrooms, locker room, dormitory, or sports team that comports with their gender identity. 

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.  

Informal segregation in schools

Erin and I are proud to call ourselves everyday athletes. We reap the obvious benefits: physical and emotional health; building and maintaining friendships; a greater appreciation for the environment in which we have the privilege of riding and running and playing.
And most of our everyday athlete companions know of our work on gender equity. So on a group charity bike ride last weekend, one of our friends pulled up alongside me and said "Kris, I have to tell you something that happened at our school."
A few weeks ago, the principal at our friend's public school (she is a teacher) divided up the students in the cafeteria at lunch and had them compete to see which group could successfully complete their times tables the fastest. Did the principal divide the children based on their birthday months? Their last names? The color of their shirts?
No, she put the girls against the boys.
Our friend was disgusted. She said she picked up her students after lunch and many were crying. Her experience and her awareness of the problems of pitting boys against girls lead her to a post-lunch talk with her students in which she told them that she thought it was wrong for adults to do that to them. She told them that everyone has different abilities but that they are not based on whether they are boys or girls.
We write a lot about formally segregated classrooms in public schools and the problems and stereotypes engendered and perpetuated by such a system. But gender segregation happens in numerous informal ways every day in public schools. And it is clear that some educators are ignorant of its effects and some have to compensate for this ignorance.
We often wish that administrators in athletics would receive training in gender equity issues. I think I just assumed that teachers-in-training were receiving this kind of education. But maybe not.

Tite IX claim survives in sexual assault case

In Allentown, Pennsylvania a judge has a ruled that a Title IX claim against the school district can go forward. Judge Paul Diamond dismissed civil rights claims brought by five alleged victims of sexual assault by an older student at Central Elementary School, but has ruled that the Title IX claims of four of the victims--all boys--can proceed, calling the school's response to the alleged sexual assaults "wholly inadequate." This lawsuit began in 2006 with one boy coming forward to say he had been assaulted. Last year, four others joined the lawsuit. Lawyers for the boys say the school did not take enough measures to ensure the assaults stopped even after being made aware both of the initial assaults and the alleged perpetrator's own history with sexual assault and misconduct.

Sexual Harassment Roundup

A number of judicial decisions involving Title IX's application to sexual harassment have been issued in the last several weeks.

• The Fourth Circuit Court of Appeals, reversing a lower district court, held that a plaintiff had presented sufficient evidence to survive summary judgment, and could pursue her claim that a municipal police academy is liable for the hostile environment she experienced as a cadet. This record included numerous instances of ostracism by her fellow cadets, sexualizing comments about women generally, and criticism and humiliation that negatively affected her education and performance on a handgun proficiency test, for which she was ultimately expelled. The record also contained references to numerous complaints that the plaintiffs and other academy instructors to the academy supervisor, which never resulted in any effort to protect the plaintiff or correct the offending cadets. This was actually a Title VII case, but is likely to be cited by Title IX plaintiffs as well, especially for the point that academic failures cannot be the basis for taking adverse action against a student when those failures were influenced by a hostile classroom environment. Mosby-Grant v. City of Hagerstown, 2010 WL 5151617 (4th Cir. Dec. 20, 2010).
  

• A federal district court in California granted the University of the Pacific's motion for summary judgment, and dismissed a student-athlete's claim that the university was liable under Title IX for an assault against her by three members of the men's basketball team. According to the court, the plaintiff did not present evidence that university officials had notice that the male athletes posted a threat to the plaintiff, as none knew that one of the assailants had been involved in a prior incident of assault, and another assailant's reputation as a "womanizer" was not enough to link him to prior incidents of assault. Nor did the University respond with deliberate indifference. Officials contacted the police immediately after the plaintiff's assault, conducted an investigation and convened judicial proceedings that expelled one of the students and suspended the other two. Doe v. University of the Pacific, 2010 WL 5135360 (E.D. Cal., Dec. 8, 2010).
  

• A school district in Washington is not liable for a female students' sexual abuse and harassment of her male peer, a fellow 10th grader who suffers from autism. The federal court dismissed the plaintiff's Title IX case after determining there was no evidence that school officials knew he was being abused. Even though one teacher apparently encountered the two students in a sexually suggestive position -- the female student sitting on top of the male student victim, "pretending to rape him" through their clothes -- the court determined that this could have appeared to the teacher as behavior that, while inappropriate for school grounds, was consensual rather than harassment or abuse. Though the court was careful to avoid gender stereotypes about boys' invulnerability to sexual abuse by girls, it did point out that because of the girl's small size made it more reasonable for the teacher to interpret what he saw as consensual. J.B. ex rel. Bell v. Mead School District No. 354, 2010 WL 5173164 (E.D. Wash., Dec. 10, 2010).

• A plaintiff's Title IX claim against a Pennsylvania school district survived a motion to dismiss; the court recognized that the plaintiffs' complaint sufficiently alleged that school officials had notice that a teacher and coach was sexually abusing or harassing their daughter, a student, yet took no steps to preclude Hetrick from having further contact with K.E., nor did it notify either the police or the plaintiffs about the allegations. Having survived the motion to dismiss, the case can now proceed to discovery, where the plaintiffs can gather evidence to prove their allegations. Douglass v. Brookville Area Sch. Dist., 2010 WL 5313448 (W.D. Pa., Dec. 20, 2010).

• A graduate student in social work sued both her university as well as her internship site, a municipal senior center, for sexual harassment by one of the center's clients. When the plaintiff informed the supervisor, she was advised to treat the client's behavior, which included physically, hugging her, touching her breasts and rear end, as a learning experience and an opportunity to demonstrate her commitment to social work. The federal court in Massachusetts sustained the plaintiff's constitutional claims against her on-site supervisor, as well as the Title IX claims against Boston University. The judge sustained the plaintiff's Title IX claim because she alleged that her faculty supervisors knew she was being harassed at her placement and failed to address it with the on-site supervisor or move her to a different internship site. Rinsky v. Boston Univ., 2010 WL 5437289 (D. Mass. Dec. 23, 2010).
  

• A "prank" in which a teacher and an aide pretended to cut a sixth-grade boy's long hair, and then teased the student by calling him a female name in front of both sixth grade classes, could result in the school district's liability under Title IX. A federal court in Ohio rejected the district's motion to dismiss because the plaintiff, the student's mother, alleged that her son reported the incident to school officials, who took no corrective action and forced him to return to the offending teachers' class. Anoai v. Mildford Exempted School District, 2011 WL 53164 (S.D. Ohio, Jan. 6, 2011).
  

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).
  

School Principal May Be Individually Liable for Teacher's Abuse

A recent Seventh Circuit decision addressed an elementary school principal's potential liability for a music teacher's sexual abuse of students. The students sued the school, the principal and the teacher on several theories of liability, including Title IX, constitutional violations, and state law claims. While the Title IX claims against the school and the state law claims against the teacher are set for trial, the principal moved to dismiss the claims that she had violated the plaintiffs' constitutional rights to equal protection and due process, arguing that she was protected from liability under the doctrine of qualified immunity.

Qualified immunity shields government officials (including public school officials) from individual liability. However, it does not apply when the official is charged with violating the plaintiffs' clearly established constitutional rights. If the substance of the plaintiff's legal argument presents a close call under constitutional law, the official is protected and the lawsuit is dismissed. But if the plaintiff's legal argument is clear winner under constitutional law, then the official is not protected, and the lawsuit may proceed so that the plaintiff can try to prove the facts of her case.

In this case, the Seventh Circuit acknowledged that sexual abuse may violate a student's rights under the Constitution's Equal Protection clause. Moreover, it was "clearly established" at the time of the events giving rise to this case that a supervisor could be liable for condoning, covering up, or turning a blind eye to the abusive conduct of a supervisee. The court agreed with the principal that recent Supreme Court decision, Iqbal v. Ashcroft, requires plaintiffs to allow allege the supervisor's discriminatory intent in such cases. However, In addition, a supervisor charged with violating the Equal Protection Clause for such conduct or indifference must to do with the intent to discriminate. But the court thought that a jury could infer from evidence that the principal helped cover up the teacher's molestation that the principal also had a purpose of discriminating against the girls based on their sex. The court therefore refused to dismiss the equal protection claims against the principal.

The court also held that qualified immunity would not shield the principal from the plaintiff's due process claims. Under the due process clause, citizens have a protected liberty interest in their right to bodily integrity -- a right that is impaired when one is physically molested by a state-employed teacher. The court considered it "clearly established" law at the time of the events in this case that a principal whose own conduct creates or exacerbates the risk that a student will be molested violates the due process clause. As noted, the plaintiffs allege that the principal actively covered up abuse, exacerbating the risk to the students. Therefore, this claim was also outside the scope of the principal's qualified immunity defense, and the principal's liability will also be decided at trial.

Decision is: T.E. v. Grindle, 2010 WL 938047 (7th Cir. Mar. 17, 2010).

School District Not Liable For Harassment by Former Teacher

The Seventh Circuit Court of Appeals recently ruled that the McLean County School District was not liable for the harassment committed by a former teacher at his new school. From 2002 to 2005, Jon White was an elementary school teacher in McLean County, Illinois. According to the plaintiff's complaint, school district officials were aware of his sexually harassing and abusive behavior, which included such disturbing things as "hugging students and holding them on his leg, having students massage him and wrap their legs around him, showing students sexually suggestive photographs, and commenting on students' sexual attractiveness," as well as engaging in something called the “taste test game,” in which White would "blindfold students and then place foods in their mouths using a banana, his hand, or his penis."

Rather than fire White outright, the McLean County School District got rid of him quietly and, according to the plaintiffs, "intentionally concealed" his sexual misconduct to his next employer, the Urbana School District -- even writing him a positive letter of recommendation. There White proceeded to harass and abuse more students, including the anonymous plaintiff in this case, Jane Doe-2. Doe-2 and other victims filed tort and Title IX claims against the McLean School District. However, a district court dismissed the tort claim on the grounds that McLean does not owe a duty of care to students in other districts. It also dismissed the Title IX claim because the harassment of Doe-2 occurred outside the scope of McLean's control.

The appellate court agreed with both results. In its Title IX analysis, of particular interest here, the court did not agree that McLean officials had notice that White would sexually abuse Urbana students. But even if they did, the court reasoned, the McLean officials did not have control over harassment Jon White was perpetrating in the Urbana schools.

To me, this reasoning takes an unnecessarily narrow view of the requirement that, for Title IX to apply, a school district have the ability to control or prevent harassment. Assuming truth of the plaintiff's allegations, McLean officials had control over White at the moment the other requirements for Title IX liability occurred; that is, at the time they learned White was a risk to future students, and at the time they responded with deliberate indifference to this knowledge by letting White go quietly. I think that the Seventh Circuit's rule gives every incentive to school districts to behave exactly as McLean is alleged to have behaved. This decisions creates a loophole from the requirement that school districts act reasonably when confronted with evidence of sexual harassment; they can avoid the hassle of disciplining or terminating an abusive teacher and still shield themselves from Title IX liability by making sure that the teacher's continuous misconduct occurs outside the district. The Seventh Circuit claims to be acting in accordance with the Supreme Court's professed reluctance to expand statutory remedies through implied rights of action. But the Seventh Circuit's rigid control test does more than refrains from expanding remedies under Title IX -- it completely undermines those remedies.

Decision: Doe-2 v. McLean County Sch. Dist., 2010 WL 199625 (7th Cir. Jan. 22, 2010).

City of Nashville Pays > $1 Million to Victim of School Bus Assault

The City of Nashville recently settled with a parent and the Department of Justice, whose lawsuit challenged the school district's failure to protect the plaintiff's 9 year old, autistic son from peer-on-peer sexual assault on the school bus provided to children with special needs. Last July, a federal district court denied the city's motion for summary judgment on several claims, including a Title IX claim, after determining that prior instances of assault on special needs school buses -- including by the perpetrator of assault in the instant case -- could be viewed as having put the city on notice of the risk to the plaintiff's son. Under the settlement, the city will pay $1.475 million to the victim to compensate him for damages resulting from the assault, including severe post-traumatic stress disorder. The city must also take preventive measures to protect students going forward, including staffing bus monitors on special needs buses, screening procedures to ensure that students are not assigned to buses where they would be at risk, expediting investigation of sexual harassment claims by students with disabilities, and improving communication between transportation officials and school personnel.

Decision on summary judgment is here: Lopez v. Municipal Gov't of Nashville, 646 F.2d 891 (M.D. Tenn. 2009).

Roundup of Recent Harassment Cases

Here are summaries of the four most recent federal court decisions in cases involving Title IX and sexual harassment. All four are favorable to the plaintiffs.

• The federal district court in Arkansas denied the Fayetteville School District's motion to dismiss several of plaintiff Billy Wolfe's claims that its failure protect him from anti-gay harassment violated Title IX and the U.S. Constitution. The court also left open the possibility that the plaintiff could receive punitive damages if he prevails on his Title IX claim. Wolfe v. Fayetteville, Arkansas School Dist., 2009 WL 485400 (W.D. Ark. Feb 26, 2009).

• A federal court in Michigan denied the Merrill Community School District's motion to dismiss Title IX claim sexual harassment suit brought by an eighth grade girl who was raped by a ninth grade boy. The plaintiff alleged that the school district knew of the boy's prior sexual misconduct at his former school, his general disciplinary problems, and several acts of aggression and harassment against the plaintiff that preceded the rape. The court reasoned that it would be possible for a jury to conclude based on these facts that the district's response constituted the deliberate indifference required for Title IX liability to attach. Doe v. Merrill Community School District, 2009 WL 817534 (E.D. Mich. Mar. 26, 2009).

• Parents' Title IX claim against the School District stemming from a teacher's sexual abuse and harassment of their first grade children survived the district's motion to dismiss. The court rejected the district's argument that the parents had not provided adequate notice of to anyone in the district with authority to curtail the teacher's ongoing conduct. The plaintiffs alleged that three different sets of parents informed the principal and assistant principal over the span of three months that the teacher had asked a student for a massage under his clothes, that he regularly isolated female students, that he had "bounced a student on his lap in a strange manner," and that the teacher was making the first graders uncomfortable with his touching. (Really? The school district did nothing with this information?) Doe ex rel. Doe v. White, 2009 WL 890557 (C.D. Ill. Mar. 30, 2009).

• Citing the Supreme Court's recent decision in Fitzgerald v. Barnstable School Committee, the federal district court in Arizona granted a plaintiff's motion to reconsider the court's earlier dismissal of her Equal Protection claim on the grounds it was preempted in by Title IX. Power v. Gilbert Public Schools, 2009 WL 890482 (D. Ariz. Mar. 31, 2009).

Appellate Court Affirms District Not Liable for Harassment on School Bus

Last fall we described a federal district court's decision to grant summary judgment in favor of the Barnstable (Massachusetts) School Committee and dismiss the Title IX case brought by parents to challenge the sexual harassment their kindergarten daughter experienced at the hands of third-grader on the school bus.

A school district is liable for peer harassment if it receives actual notice of ongoing harassment and responds with "deliberate indifference." The district court was unable to find the school district liable under this standard because after the parents learned of the harassment and reported it to the school, they never let their daughter ride the bus again. For this reason, the kindergartner was not subject to any further harassment. Thus, the district court said, it could not be determined whether the school district's response was deliberately indifferent or whether it would have been effective at preventing the victim's harassment.

On appeal, the First Circuit Court of Appeals affirmed the district court's result, but clarified its reasoning. Contrary to the implications of the district court's ruling, a single reported incident of harassment can potentially give rise to Title IX liability. The adequacy of the school district's response is not measured by whether or not the victim actually experiences harassment after putting the school on notice, but whether the school district's response to notice of harassment is a reasonable effort to curb future harassment.

The appellate court then concluded that the school district's response was a reasonable effort rather than an indifferent one. After learning of the harassment, the principal immediately began an investigation, which it diligently pursued. The school also offered to change the victim's bus assignment and/or to make seat assignments that would separate the younger kids from the older kids on the bus. And while the court did not necessarily condone the school's decision not to take disciplinary action against the third grader, it affirmed the school's decision as a reasonable effort to balance competing interests in ensuring students' safety as well as responding with sensitivity to the third grader. (As we've noted in prior posts, there's a case to be made that schools should respond to sexual misconduct by elementary school children with educational, corrective measures rather than punishment, since children that young are unlikely to understand that sexual behavior is inappropriate and/or may be the victims of sexual misconduct themselves.)

Decision is: Fitzgerald* v. Barstable School Comm., 2007 WL 2914546 (1st Cir. Oct. 5, 2007).

*Unlike the district court, which referred to the parties by pseudonyms to protect their anonymity, the First Circuit decision uses the plaintiffs' real name. That is why the decision has a different name on appeal.

Article Examines Peer Harassment in Elementary School

Kathleen Conn's article, Peer Harassment in Elementary Schools: Is Title IX the Answer? was recently published in West's Education Law Reporter.

Dr. Conn, an elementary school principal and a J.D., surveys a number of lower court decisions post-Davis involving student-on-student harassment in the elementary school setting. Most of these decisions concluded that the young plaintiffs failed to satisfy the legal elements of a Title IX claim for peer harassment, whereas "[b]efore the Davis decision, courts were more inclined to find school districts liable for their actions or inaction in resolving complaints of peer sexual harassment, despite the lack of clear standards on which to base their decisions."

She suggests that the "severe and pervasive" legal standard, articulated in Davis, has enabled judges to factor in the perceived inability of a child of elementary school age to intentionally sexually harass another student. But, she points out, the harasser's intent is irrelevant under Title IX if the responsible adults were aware of the problem and could reasonably be expected to protect the victim.

She concludes by encouraging elementary school officials to effectively protect students from peer harassment by recognizing and reporting harmful sexual behavior. They must effectively intervene to curtail the conduct and try new strategies when their efforts are ineffective. At the same time, she argues, it is important not to over-react, especially to victimless sexual conduct: "A simple reminder to the child that such behavior is not proper school behavior may solve the problem... No educator should make a child feel guilty about normal sexual curiosity or exhibitionism, but the child should be taught appropriate school behavior." Sensitivity to the student engaging in sexual conduct is also required because sometimes it is a sign that the student is receiving abuse or harassment at home or elsewhere.

Citation: Kathleen Conn, Peer Harassment in Elementary Schools: Is Title IX the Answer? , 219 Ed. L. Rep. 25 (2007).