A federal judge from the District of Kansas has delivered a mixed ruling in a case involving allegations that a volunteer coach violated the Constitutional rights of multiple students, and that the school district that employed the defendant violated Title IX of the Education Amendments of 1972.
In a recitation of facts that are most material to the court’s resolution of the district’s summary judgment motion, the court noted that Aubrey “was a volunteer weight training coach for student athletes in Liberal, Kansas. He ran a weight training program out of his home in which many youth in Liberal participated over the course of several years. The participants included, among others, plaintiffs C.T., J.B. and G.B. This lawsuit arises out of the fact that Aubrey’s program with plaintiffs included, to varying degrees, having them take nude baths at Aubrey’s house while Aubrey would sometimes come in and out of the room; Aubrey giving them body massages using an ultrasound machine on sore muscles, including sometimes massaging their groin areas and buttocks, while they lay naked on his bed (except for keeping a towel over their genitals); and having them conduct weigh-ins at the school in the nude when it was not wrestling season.
“Aubrey also engaged these teenage boys in conversations and various activities ostensibly as sex education to keep them from getting girls pregnant and keep themselves out of trouble of a sexual nature. These ‘sex talks’ included isolated incidents where, for example, he told G.B. to practice putting on a condom, he encouraged C.T. and G.B. on separate occasions to masturbate, and there were occasions when he had the boys watch sex videos. The fact that these events occurred is relatively uncontroverted. Plaintiffs claim that Aubrey’s actions were inappropriate whereas defendant Aubrey denies that his actions were wrongful. Plaintiffs also claim that Aubrey operated his program in connection with the Liberal School District’s athletic programs and, as such, plaintiffs assert that the school district and several individuals employed by the school district are liable for Aubrey’s actions.”
In the initial complaint, the plaintiff students accused Aubrey, who was defending himself in the case, of childhood sexual abuse, battery, and breach of fiduciary duty. Additionally, they claimed the school district, and several individuals employed by the school district, violated Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., the Constitution under 42 U.S.C. § 1983, and state law. They sought to impose vicarious liability on the district for Aubrey’s actions, negligent supervision of Aubrey, and negligent failure to supervise children.
“The predominant theme of the current motions for summary judgment,” wrote the court, “is the extent to which the school district and/or its various employees can be held liable for Aubrey’s actions. The school district defendants maintain that Aubrey was not an employee of the school and his weight training program was not a school program and, as such, it cannot be held liable for his actions. They rely on the fact that the problems with Aubrey’s program did not come to light until the spring of 2003 when (one of the plaintiffs) reported the matter to law enforcement officials. … Aubrey discontinued his program that same spring and the school district took measures to distance itself from Aubrey. Thus, the summary judgment record does not reflect that Aubrey engaged in any of the conduct that forms the basis of this lawsuit at any time after the spring of 2003.”
By contrast, the plaintiffs sought to impose liability against the school district defendants because Aubrey “ingratiated himself and became friends with the school district’s coaches and athletics director; they gave him physical access to school property, including his own key to the school; they gave him special access to athletes reserved only for the school district coaches such as allowing him to be present in the coaches’ areas and permitting him to assist with practices; and, in doing so, they cloaked him in the authority of the school’s athletic programs. (The plaintiffs) contend that Aubrey was a resource to the sports programs at the Liberal High School who helped prepare students physically for the district’s sports programs and he effectively became another supervisor of the athletes. Parents and students perceived that athletes who participated in Aubrey’s program were given special consideration in high school sports. Aubrey was so far insinuated into the school district’s athletic program that at least one parent believed him to be what is known as a ‘Rule 10’ coach who is not a certified teacher but is hired by the school to coach student athletes.”
Before beginning its analysis, the court noted that the plaintiffs assert four different types of Title IX violations: (A) deliberate indifference to harassment by Mr. Aubrey, (B) deliberate indifference to harassment by other students, (C) retaliation for complaining about sexual harassment and abuse (plaintiffs J.B. & G.B. only), and (D) failing to implement adequate policies and training to protect them from harassment.
On whether the school district violated Title IX by being deliberately indifferent to the harassment by Aubrey, the court found that “a rational trier of fact could not conclude based on the summary judgment record that any school district personnel had actual knowledge that Aubrey posed a substantial risk of abuse to students,” granting the school district’s motions for summary judgment on these claims.”
Turning to whether the district exhibited deliberate indifference to harassment by other students upon the plaintiffs, the court granted the district’s motion with regard to two of the claims, bur denied a third.
Addressing the district’s motion against the claim of retaliation for complaining about sexual harassment and abuse, the court granted the motion, finding that the plaintiff “has failed to establish this element of his prima facie case of retaliation.”
Lastly, the court addressed the plaintiffs’ final Title IX claim, which alleges that the school district “acted with deliberate indifference by establishing policies, procedures, and practices that caused or promoted an environment or program in which sexual abuse, harassment, and/or retaliation of students occurred or by acting with deliberate indifference to providing training and guidance that was obviously necessary for the implementation of school athletic programs.”
The court sided again with the district, writing that the “failure to implement sexual harassment policies and procedures is insufficient to establish liability under Title IX because this failure does not imply the school district’s actual notice of any sexual harassment or its deliberate indifference thereto.”
The court then turned to the plaintiff’s claim, pursuant to 42 U.S.C. § 1983, that they were “deprived of their Constitutional rights to substantive due process and equal protection when they were sexually abused and/or harassed by Aubrey, who was acting under color of law, and that the school district defendants’ custom, policy, or widespread practice was a moving force behind those constitutional violations.”
The school district defendants seek summary judgment on the basis that Mr. Aubrey was not a state actor. The plaintiffs “notably have not responded to the school district defendants’ motions on the issue of whether Aubrey’s conduct can be regarded as state action.” Accordingly, the court granted summary judgment to the district on this claim.
C.T. v. Liberal School District, et al.,; D.Kan.; Case No. 06-2093-JWL, Case No. 06-2360-JWL, Case No. 06-2359-JWL; 2008 U.S. Dist. LEXIS 45848; 6/10/08
Attorneys of Record: (for plaintiff) Luis Mata, Rebecca M. Randles, Sarah A. Brown, LEAD ATTORNEYS, Randles, Mata & Brown, LLC, Kansas City, MO. (for defendants) Allen G. Glendenning, LEAD ATTORNEY, Watkins Calcara, Chtd., Great Bend, KS.; John G Schultz, Nikki E. Cannezzaro, LEAD ATTORNEYS, Franke, Schultz & Mullen, PC, Kansas City, MO.