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).