By Brian G. Nuedling, of Jackson Lewis P.C.
While “simple teasing and name calling” may be insufficient to establish a claim under Title IX, the California Court of Appeal found allegations alleging a pattern of abusive conduct sufficient to survive a motion to dismiss.
FACTUAL BACKGROUND
In John T.D. v. River Delta Joint Unified School District,[1]the plaintiff was a member of the football team. He alleged that his coach routinely discussed sex with his wife and asked team members “how far” they had gotten with their girlfriends. John alleged that he did not participate in the discussions but was ridiculed for admitting to being a virgin.
John further alleged that football players became members of the “Brotherhood,” and that one rite of passage called for younger team members to touch the testicles of the senior players. John alleged that the coach was aware of this practice. He further alleged that in one instance, when teammates demanded that he touch a teammate’s exposed testicles, he ran from the room. John, who played center, also alleged that the team’s quarterback intentionally grabbed and fondled John’s testicles instead of merely touching his leg to indicate that he was ready for John to “snap” the football.
John alleged that he was characterized as “different,” “not macho,” and was perceived as possibly gay because he would not participate in the sexualized talk and the Brotherhood. John alleged that he complained of this conduct repeatedly, but that the coach allowed it to continue. John further alleged that the coach began using the “Oklahoma Drill” on John, to “make a man” out of him. The drill consisted of two players running into each other between barriers. According to John, teammates began using the phrase “FUCKJT[Year] in group chats and also yelled it out during classes.
According to the complaint, John’s mother met with the principal early in the school year and complained that John was being bullied and sexually harassed, in violation of the law and the student handbook. John’s mother reported that her son felt degraded, humiliated, anxious, and fearful, and that this was adversely affecting both his participation in football and his academic performance.
The complaint alleged that the principal’s response was to speak with the coach. The complaint alleged that at the next practice, the coach stared at John while stating that “some people are tattletales” and “sometimes people don’t know how to take a joke and you can’t say things anymore in group chat that could be perceived as wrong, so knock it off.” John alleged that teammates understood John to be the “tattletale,” and that the coach was directing the Brotherhood to retaliate against him. According to the complaint, at the same practice, the coach began using a modified “Oklahoma Drill” in which, “practically daily,” multiple players who were almost twice the size of John lined up and ran into him repeatedly, causing severe bruising.
According to the complaint, John’s mother met again with the principal and complained about the continued harassment and the modified drill. The complaint alleged that the principal took no further action except to urge John to let things roll off his back and have “thicker skin.” She invited John to come to the outer room of her office whenever he felt overwhelmed.
John alleged that he reported to the principal’s office, upset, on almost a daily basis. He alleged that the principal saw him but never asked why he was there. John alleged that he missed school, including a span lasting a week and a half, and stopped going to football practice. He withdrew from the school before the end of the school year.
PROCEDURAL HISTORY
Plaintiff brought claims against the District, its superintendent, the former principal, and former coach, alleging sexual harassment and retaliation under Title IX of the Education Amendments of 1972.[2] With the exception of the coach, Defendants filed a motion to dismiss the Title IX claims, alleging insufficient facts to support either cause of action. The trial court concluded that John had not adequately alleged harassment based on gender or that Defendants were actually alerted to such harassment. With respect to retaliation, the trial court concluded that deliberate indifference was not a permissible theory of liability under Title IX. Accordingly, the trial court granted the motion to dismiss. Since John brought no other claims, the trial court entered judgment, dismissing John’s cause of action. John filed a timely appeal, resulting in the analysis and decision by the Court of Appeal of California.
COURT ANALYSIS
As to the cause of action for gender-based harassment, the appellate court noted a holding from the United States Supreme Court that damages under Title IX cannot be recovered unless an official of the school district who, at a minimum, has authority to address the alleged discrimination and to institute corrective measures has actual knowledge of discrimination in the school programs at issue and fails to respond adequately.[3] The court further noted a Supreme Court holding that a Title IX funding recipient can be liable for student-on-student harassment, “but only where the funding recipient acts with deliberate indifference to known acts of harassment in its programs and activities” and “only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”[4]
The appellate court then evaluated the facts of the case under the four requirements for the imposition of school district liability under Title IX for student-on-student harassment: (1) whether the district exercised “substantial control” over the harassers and the context in which the harassment occurred; (2) whether the behavior was so “objectively offensive that it denied its victims the equal access to education that Title IX is designed to protect”; (3) whether the school district had “actual knowledge” of the harassment; and (4) whether the school district was “deliberately indifferent,” i.e., that its response to the harassment was “clearly unreasonable in light of known circumstances,” and that “deliberate indifference, at a minimum, causes a student to “undergo harassment” or make the student “liable or vulnerable to it.”
Taking the elements in order, the court found that “substantial control” had been satisfied because the alleged misconduct occurred mainly on school grounds, and always during school hours, football practice, or at another team event. As to harassment, the court found that the complaint had sufficiently alleged that the misconduct was based on John’s failure to conform to traditional sex stereotypes, which a plaintiff may use to demonstrate gender discrimination for purposes of Title IX.[5] In addition, and noting that John had alleged “more than simple teasing and name-calling,” the court concluded that he had adequately brought facts to support a claim for harassment that was “severe, pervasive, and objectively offensive.” The Court also concluded that John had adequately alleged harassment that caused the denial of educational opportunities or benefits because the alleged harassment had caused him to stop playing football, miss a significant amount of school, and ultimately withdraw from school.
As to the element of notice, the court found that reports to a high school principal were sufficient to satisfy the requirement that an individual with the authority to address and correct the problem had actual knowledge of the discrimination. Finally, as to deliberate indifference, the court noted that the school took no action beyond speaking with the coach. The court found it could not conclude that “the response was not clearly unreasonable as a matter of law.”
Accordingly, and as to the first cause of action for sex-based harassment, the court concluded that the trial court had erred in granting the motion to dismiss.
As to the second cause of action, for retaliation, the court rejected the trial court’s conclusion that a “deliberate indifference” standard is insufficient to support a Title IX retaliation claim. Instead, and applying this standard, the court found that John had adequately alleged a claim for retaliation because of the continuation of the conduct, even after both he and his mother had complained.
In total, the court found that John’s allegations were sufficient to survive a motion to dismiss. Therefore, the court reversed the judgment of dismissal and remanded the case to the trial court.
[1] No. C092665, 2021 Cal. App. Unpub. LEXIS 7014 (Cal. Ct. App. Nov. 8, 2021).
[2] A Fourth Amended Complaint was brought by John and a co-plaintiff, “N.B.,” against the District, its superintendent, Plaintiffs’ former principal, and Plaintiffs’ former coach. Plaintiffs’ first and second causes of action alleged separate claims for gender-based harassment and retaliation against the District under Title IX. The third and fourth causes of action were asserted only by N.B. against all defendants and alleged state law claims for negligent supervision and hiring that were not issue in the appeal that was before the court.
[3] See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 277 (1998).
[4] See Davis v. Monroe Cnty. Bd. ofEduc., 526 U.S. 629, 633 (1999).
[5] Quoting Chisholm v. St. Marys City Sch. Dist. Bd. of Educ., 947 F.3d 342, 351 (6th Cir. 2020).
