A published decision from the 6th Circuit allows for liability of the school for student-to-student sexual harassment based on what happened—and what did not happen--before the school was informed that the plaintiff student has been sexually harassed. How can that be?
Let’s start by reviewing how the courts have handled student-to-student sexual harassment claims up to this point. The standards are well established. School districts are not legally liable for student-to-student sexual harassment every time it happens. There has to be evidence that the district knew about it and responded in a completely inadequate way. The focus in these cases is on what happened after the school was informed that the plaintiff has been harassed.
The plaintiff in the new case is Jane Doe, a freshman, who alleged that she was the target of “unwelcome sexual activity” from four older boys. The court does not tell us what kind of “sexual activity” this was, but we are told that it happened in the stairwell of the school, and it was caught on video. (Is there anything not caught on video these days?) Jane did not know that someone was videoing the incident until it started circulating later. Jane’s parents then reported this to the assistant principal.
Let’s pause right here. In a typical student-to-student sexual harassment case the focus would now turn to what the A.P. did with this information. Did he take it seriously? Did he investigate? What corrective action was taken, if any? As long as his response is not deemed “deliberately indifferent,” the school district will have no legal liability.
This court does focus on those issues, and if that was all the court did, it would not be Dawg worthy. That’s the standard legal analysis: what happened AFTER the school was informed?
What makes this decision Dawg worthy is that the court also examined what happened BEFORE Jane was accosted in the stairwell. The court held that the school might be liable not just for what happened AFTER that incident, but also for the fact that the school failed to prevent the incident in the first place.
How can that be? Prior to this incident, Jane Doe had never reported any sexual misconduct. However, she alleged that a whole lot of other students reported a whole lot of sexual misconduct over a long period of time. The court noted that Jane Doe alleged that the school “had a widespread problem in its schools: numerous instances of sexual misconduct and the dissemination of sexual images of minor students without their consent.” The plaintiff alleged that the school shrugged its collective shoulders over all of this, which thus caused the incident in the stairwell.
How widespread was the problem? The plaintiffs unearthed a trove of school disciplinary records over a four-year period:
*950 instances of sexual harassment;
*over 1200 instances of inappropriate sexual behavior;
*45 instances of sexual assault; and
*218 instances of inappropriate sexual contact.
The court held that this was enough to set out a plausible claim. The school district’s Motion for Summary Judgment was denied. The case will continue.
What does this mean for you? It’s a new angle on school district responsibilities that should cause you to examine how claims of student-to-student harassment are being addressed. It’s particularly a wakeup call for your Title IX coordinator. After recounting the number of reported incidents, the court pointed out the apparent non-compliance with Title IX standards:
Many of those incidents involved students taking and/or distributing sexually explicit photographs or videos of themselves or other students. Despite the frequency of inappropropriate sexual behavior in MNPS facilities, the incidents were handled on an individual basis by the principal of the school in which the sexual offender was enrolled. And although the Department of Education guidance to schools recommended that the Title IX coordinator address all complaints raising Title IX issues, the system-wide Title IX coordinator for MNPS was not involved at all in resolution of the sexual misconduct incidents. Rather, she was only notified if the untrained principals determined there was a Title IX violation.
Two suggestions: first, take a look at your Policy FFH and FFH Local regarding Title IX investigations. Many of you will find that the Title IX Coordinator must be involved in the process. Second, reach out to the lawyers at Walsh Gallegos if you would like some additional training in this area.
The case of Doe v. Metropolitan Government of Nashville and Davidson County, Tennessee was decided on May 19, 2022. It’s located at 2022 WL 1573848 and the Dawg is grateful to Loyal Daily Dawg Reader Tony Graham for bringing this case to my attention. The case has a long way to go, but our main concern here is not about how this case comes out. It’s about what we can learn from it to create and maintain a school environment free of sexual harassment.
DAWG BONE: A GOOD ONE FOR T9 COORDINATORS TO REVIEW. Got a question or comment for the Dawg? Let me hear from you at firstname.lastname@example.org