The 6th U. S. Circuit Court of Appeals has affirmed a district court ruling that a local board of education should not be held liable for the actions of a high school coach, which “tolerated a culture of student-on-student hazing.”
In so ruling, the panel of judges found that the father, Donald Richardson, could “not show that the board acted with deliberate indifference, and he could not show that it was reasonably foreseeable that the complained of harm would befall his son as a result of the board’s conduct” and that “there was no evidence that the board could foresee that the coach or any coach at the school would authorize upperclassmen to sexually assault underclassmen as a method of reinforcing team discipline.”
In November 2010, K.R. was a freshman at Wayne High School in HuberHeights, Ohio, and a prospective member of the baseball team. Members of the team participated in regular voluntary after-school weightlifting sessions at the high school gym. An argument involving K.R. at one such session drew the attention of Assistant Coach Jonathan Soukup. Within a few days of the incident, Soukup approached B.C, a junior at the school and a member of the baseball team, and inquired about K.R. Soukup allegedly told B.C. to “take care of it.” Soukup denies making the statement.
The assault on K.R. took place on November 22, 2010. K.R. left the weight room to get a drink of water in the hallway and B.C., together with three other students, including defendant R.M., followed him. As K.R. was returning, R.M. put his hand on K.R.’s shoulder, shoved him into a corner, and held him down. B.C. then inserted his finger into K.R.’s anus for around 20 to 30 seconds. K.R. did not report the incident until, in tears, he informed his parents late that night.
The next morning, K.R.’s parents met him at the school, and together they reported the incident to Vice Principal Erica Ford. K.R.’s mother testified that Ford told the family that “this has been happening, but no one would come forward.” Ford denied making the statement, and further denied that she had knowledge that similar incidents had ever occurred at the school.
Wayne High School Athletic Director Jay Minton also informally interviewed the head coaches at the school regarding hazing and bullying, but testified that no coaches were aware of any such issues.
“Critical to Richardson’s claim against the Board,” wrote the court, “is testimony regarding what he characterizes as an ‘environment of physical abuse and bullying’ in the Huber Heights City Schools around this time.”
Richardson brought claims against the Board under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, as well as under 42 U.S.C. § 1983, together with common-law tort claims against B.C. and R.M. These tort claims were settled out of court by Richardson, B.C., and R.M.
Upon cross-motions for summary judgment, the district court found for the Board. Richardson did not appeal the district court’s dismissal of his Title IX claim; only his § 1983 claim remains.
Richardson’s case hangs on a theory of “state-created danger” by way of Coach Soukup’s “take care of it” comment, according to the court.
It went on to note that “a plaintiff proceeding under a state-created danger theory of liability must show: (1) ‘an affirmative act by the State that either created or increased the risk’ that he would be ‘exposed to private acts of violence’; (2) a ‘special danger’ to him created by the state action, ‘as distinguished from a risk that affects the public at large’; and (3) ‘the requisite state culpability to establish a substantive due process violation.’ Jasinski, 729 F.3d at 539. The third prong here amounts to deliberate indifference, which the court has ‘equated . . . with subjective recklessness’; that is, the state official ‘must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.’ McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 469 (6th Cir. 2006)
While satisfying the first two prongs, the court found that the plaintiff did not satisfy the third.
“Although a jury could find that Soukup may not have precisely envisioned this incident, the evidence supports the inference that school officials could not have been unaware of this culture of student leadership via bullying, and the risk it posed,” wrote the court.
“Put simply, there is no evidence in the record that the Board could foresee that Soukup or any coach at Wayne would authorize upperclassmen to sexually assault underclassmen as a method of reinforcing team discipline. Cf. id. at 610. No testimony, beyond a brief discussion of a single coach on the basketball team, has accused coaches of fostering such behavior. Accordingly, we need not draw the unreasonable inference that the board should have foreseen it. Cf. Powers, 501 F.3d at 609-11.”
Donald Richardson, on behalf of Himself and on behalf of his minor child, K.R., v. Huber Heights City Schools Board of Education; 6th Cir.; Case No. 15-4036, 2016 U.S. App. LEXIS 10166; 2016 FED App. 0293N (6th Cir.); 6/2/16
Attorneys of Record: (for plaintiff — appellant) Gregory P. Barwell, Quinn Schmiege, Wesp Barwell, Columbus, OH; Konrad Kircher, Kircher, Arnold & Dame, Mason, OH. (for defendant — appellee) Lynnette Dinkler, Jamey Todd Pregon, Dinkler Pregon, Dayton, OH.
