A federal judge from the Southern District of Indiana has granted a partial motion for summary judgment to a school district after the team manager for one of its high school basketball teams was hazed by other team members, and subsequently sued, pursuant to Title IX of the Education Amendments Act of 1972 and 42 U.S.C. § 1983.
Specifically, the plaintiff, M.D., claimed he was subjected to unlawful peer-on-peer harassment that violated his substantive due process and equal protection rights and that the school failed to properly train its officials in recognizing and responding to sexual assault and harassment.
The judge found, among other things, that the school acted in a sufficiently timely manner when it learned of the harassment.
The incidents that led to the litigation began in the fall of 2009 when M.D. was a freshman at Carmel High School and acted as the manager of the freshman boys’ basketball team. Despite not being officially a team member, M.D. was encouraged to spend time around the team, and thus Jacob Sutton, the student manager of the varsity basketball team, assigned M.D. a locker in the basketball locker room. M.D. would change into his basketball clothes in the locker room before practices where he used his assigned locker to store his basketball clothes.
M.D. alleged that from November 2009 through January 2010, he was consistently harassed in the basketball locker room before and after practice by four senior basketball players, who allegedly “flashed” M.D., taunted him with sexual innuendos, and grabbed his genitals, among other things. Although he is not gay, M.D. believed the four seniors could have perceived him to be homosexual based on his habits and proclivities, according to the court. The actions in the locker room intensified.
Then on January 22, 2010, M.D. traveled on a school bus to Terre Haute, Indiana, with the freshman, junior varsity, and varsity basketball teams for a game against Terre Haute South. The seniors sat in the back of the bus, while M.D. sat near the front. At one point, M.D. alleged that he heard three seniors calling his name. Because he was afraid of what would happen if he did not see what they wanted, he went to the back of the bus. The three seniors then grabbed M.D., pulling him into one of the seats, and one of them sat on his face. The perpetrators tried to remove his shoes and socks and pull down his pants. They succeeded at pulling down one pair of shorts, but M.D. was wearing two pairs. One senior then stuck his fingers into M.D.’s lower buttocks over the shorts. M.D. was then pulled to the ground at which point he alleges he was anally penetrated. M.D. contends that he tried to return to the front of the bus but that other freshmen players were blocking him with their legs. According to M.D., when he tried to call out for help, the three seniors covered his mouth while the other players simply watched. When M.D. was finally released by the seniors, he returned to the front of the bus. The three boys’ basketball coaches were sitting in the front of the bus throughout the assault. The head coach testified that he did not hear or see anything during the bus ride that alerted him to any occurrence of physical or sexual abuse or any other form of hazing.
At some point in February 2010, M.D. allegedly told the head coach that he had been sexually assaulted on the school bus on the way home from Terre Haute, and also that he had been harassed on numerous occasions in the boys’ locker room. M.D. alleged that the coach took no steps after the meeting. The coach countered that the meeting never occurred and that he did not learn of the harassment until February 16, 2010, the date on which school officials were first notified.
Once notified, school officials informed their resource officer of the report and also notified the police department, which began an investigation. The accused students each received out-of-school suspensions for five days and were ultimately expelled.
After the incidents, the plaintiff struggled academically at various schools in the area. His parents ultimately sued on June 7, 2011, the defendant subsequently moved for summary judgment on the federal claims.
The court addressed the claim for Title IX peer harassment first, noting that “a school district may incur Title IX liability for student-on-student sexual harassment if the district was deliberately indifferent to harassment that was so pervasive, severe, and objectively offensive that it denied the student equal access to education.” Trentadue v. Redmon, 619 F.3d 648, 654 (7th Cir. 2010) (citing Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 649, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999); Gabrielle M. v. Park Forest-Chi. Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 821 (7th Cir. 2003)). A school is liable for peer-on-peer harassment only when the school has actual knowledge of the harassing conduct and its “response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648.
“Here, the school contends that the plaintiffs have failed to establish a claim pursuant to Title IX because they have failed to show that the harassment suffered by M.D. was on the basis of his sex; that the harassment deprived M.D. of educational opportunities; that the school had actual knowledge of the harassment; and that the School was deliberately indifferent to the harassment.”
On “the basis of sex” contention, the court found that the aforementioned sexual abuse was “sufficient” in that, at the very least, a genuine issue of material fact existed whether the harassment in this case was “based on sex.”
The court also left the door open on whether “the behavior at issue denies a victim equal access to education.” Gabrielle M., 315 F.3d at 823 (citing Davis, 526 U.S. at 652).
“Given the severity of the harassment and the physical assaults that occurred here (which, for purposes of this motion at least, the School does not dispute) as well as the level of publicity the allegations received because of the perpetrators’ status as varsity basketball players, there is at least a genuine issue of material fact regarding whether the conduct and the resulting fallout may have been so severe as to prevent M.D. from being able to continue to attend CHS,” wrote the court.
The plaintiffs’ argument, however, lost steam on the question of whether there was actual knowledge and deliberate indifference.
“The record before us unequivocally establishes that school administrators (not the head coach) were first made aware of the sexual assault allegations at approximately 11:00 a.m. on February 16, 2010, after receiving a telephone call from another student’s parent reporting what had occurred on the Terre Haute bus trip,” wrote the court. “Once the school had actual knowledge of the allegations, its administrators acted quickly, almost immediately suspending the perpetrators and ultimately expelling them. Given the swiftness of the response and the seriousness with which the School treated the allegations, we cannot conclude that it acted in a clearly unreasonable manner once it had actual knowledge of the harassment. Accordingly, the plaintiffs’ Title IX claim cannot survive summary judgment.”
Turning to the plaintiffs’ claim that they were denied their rights under the Equal Protection and Due Process clauses of the Fourteenth Amendment, pursuant 42 U.S.C. § 1983, the court also agreed with the defendants.
To prove an Equal Protection claim, the plaintiffs “must establish that the School was deliberately indifferent to his complaints of harassment because of his perceived sexual orientation,” wrote the court. “There simply is no evidence that the School perceived M.D. as homosexual, let alone that it treated M.D.’s complaints of harassment differently than complaints from students whom it did not perceive as homosexual. Accordingly, the plaintiffs’ equal protection claim clearly cannot survive.”
As for the Due Process claim, the court noted that the plaintiffs’ argument relied upon the state-created danger doctrine. “To establish a substantive due process claim under a state-created danger theory, the plaintiffs must establish that: (1) the School, by its affirmative acts, created or increased a danger that M.D. faced; (2) the School’s failure to protect M.D. from danger was the proximate cause of his injuries; and (3) the School’s failure to protect M.D. ‘shocks the conscience.’ See Jackson v. Indian Prairie Sch. Dist. 204, 653 F.3d 647, 654 (7th Cir. 2011),” according to the court.
In bringing the claim, the plaintiffs asserted that in early January 2010 that the coach knew of a sexual assault against another member of the basketball team and failed to take appropriate action by reporting the incident, which the plaintiffs alleged empowered the senior student perpetrators to continue harassing and assaulting M.D. The problem with that argument is that even if the coach’s “failure to report the assault were an affirmative act, the plaintiffs cannot show that that failure was the proximate cause of M.D.’s injuries.
Accordingly, Plaintiffs’ due process claim based on a state-created danger theory does not survive summary judgment.”
Turning lastly to the failure to train claim, the court sided with the defendants since the evidence “establishes that the first time any policymaker at the school learned of an alleged failure to adhere to the reporting policy was when it received notice in February 2010 of the allegations surrounding the sexual assault of M.D. that took place on the bus, at which point the School reported the allegations and then suspended and ultimately expelled the perpetrators.”
Rickey L. Davis, Sheronda Davis v. Carmel Clay Schools; S.D. Ind.; No. 1:11-cv-00771-SEB-MJD, 2013 U.S. Dist. LEXIS 141888; 9/30/13
Attorneys of Record: (for plaintiffs) Cari L. Sheehan, Gregory P. Gadson, Nathaniel Lee, Robert B. Turner, LEE FAIRMAN LLP, Indianapolis, IN. (for defendant) John W. Mervilde, Rick D. Meils, MEILS THOMPSON DIETZ & BERISH, Indianapolis, IN.
