In a majority decision, the 6th U.S. Circuit Court of Appeals has affirmed in part and reversed in part the ruling of a district court, which dismissed the claim of a student athlete at Kent State University, who alleged that she was raped and that her school and coach, the defendants, were liable for the alleged violations of U.S. Constitution and Title IX.
By way of background plaintiff Lauren Kesterson told her coach, Karen Linder, that Linder’s son had raped her. Linder never notified anyone at Kent State, according to the complaint. The university learned about the assault two years later when Kesterson made a complaint to the school’s Title IX office. An investigation of the complaint led to Linder’s resignation. Kesterson sued Kent State, Linder, and another coach, Eric Oakley, for violating the free-speech-retaliation protections of the First (and Fourteenth) Amendments, the equal-protection guarantees of the Fourteenth Amendment, and Title IX.
The district court granted summary judgment to the defendants.
The plaintiff appealed.
The court first considered the Constitutional claims against Linder. “Kesterson believes Linder violated her First Amendment right to speak freely and her Fourteenth Amendment right to equal protection of the law,” wrote the court. “Linder faces no liability unless she violated a Constitutional right that is clearly established. Pearson v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). Only when ‘existing precedent’ places the rule at issue ‘beyond debate’ will we consider the law ‘clearly established.’ Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011). That does not mean we need a case ‘directly on point.’ Id. A key consideration is notice. Unless a reasonable official, confronted with the same facts, would know that the challenged actions violate the law, qualified immunity bars liability. District of Columbia v. Wesby, 138 S. Ct. 577, 590, 199 L. Ed. 2d 453 (2018).
“Assessed in the light cast by this standard, one of Kesterson’s constitutional claims succeeds at this stage and two fail as a matter of law.”
The court began with the successful claim, involving the First Amendment retaliation challenge.
“To show retaliation, Kesterson must establish (1) that the First Amendment protects her speech, (2) that she suffered an injury that would deter a person of ‘ordinary firmness’ from continuing to speak out, and (3) that Linder’s actions were motivated at least in part by Kesterson’s speech. Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d 580, 585-86 (6th Cir. 2008).”
The plaintiff satisfied the first element. The court then highlighted the actions of the coach upon Kesterson, such as “Linder chastising her in front of another coach for becoming emotional during a practice. Linder also removed Kesterson from her starting shortstop position in favor of a younger player and limited her playing time. Then there’s the fact that Kesterson had to attend multiple events at the Linder home, where (the coach’s son) lived at the time. Kesterson claims Linder made her go even after Kesterson objected that she felt uncomfortable going there. Whether or not these actions would deter an ordinarily person from speaking out turns on a number of things: Is this what really happened? Is Kesterson or Linder more credible? How do the true facts line up with the dynamics of a player-coach relationship? See Fritz v. Charter Twp of Comstock, 592 F.3d 718, 724 (6th Cir. 2010). On the record so far, these are questions best answered by a jury rather than a panel of three judges.” The court wrote that the remaining questions raised on appeal that are relevant to Linder would also be better left for “a jury to decide.”
‘Appropriate Persons’ Test Comes into Play
Turning to the Title IX claim against Kent State, the court noted that Kesterson claims that Kent State violated Title IX in the way it handled her sexual assault report and turned to relevant case law.
“In certain limited circumstances,” Davis v. Monroe County Board of Education, 526 U.S. 629, 643, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999), a “federally funded university may be directly liable under Title IX for its inadequate response to allegations of student-on-student harassment,” Doe v. Univ. of Ky., 959 F.3d 246, 250 (6th Cir. 2020). Schools face liability when they (1) have “actual knowledge” of sexual harassment (2) that is “so severe, pervasive and objectively offensive” that it deprives the student of “educational opportunities or benefits” and (3) act with deliberate indifference to the problem. Davis, 526 U.S. at 650.
It added that Kent State “concedes that Kesterson suffered ‘objectively offensive’ sexual harassment. That leaves two questions: Did Kent State know about the alleged rape? And did it act with deliberate indifference in responding to it?
“Kent State learned about Kesterson’s allegations when she reported them to the school’s deputy Title IX coordinator in 2015. That’s the case even though Kesterson told Linder and a few other Kent State employees before then. Only when an ‘appropriate person’ at a school knows about sexual discrimination does the school have ‘actual knowledge.’ Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998); Stiles ex rel. D.S. v. Grainger County, 819 F.3d 834, 848 (6th Cir. 2016); Hill v. Cundiff, 797 F.3d 948, 971 (11th Cir. 2015). An appropriate person is someone who ‘at a minimum has authority to address the alleged discrimination . . . on the [school’s] behalf.’ Gebser, 524 U.S. at 290.
“Erin Barton was that person. She was Kent State’s deputy Title IX coordinator and counts as an ‘appropriate person.’ She had the authority to take corrective actions on Kent State’s behalf to remedy the sexual discrimination Kesterson faced.
“Contrary to Kesterson’s argument, the other employees she told lacked any similar powers. Yes, they could have aided her in getting access to helpful resources. And yes, they could have, and should have, reported her allegations to Kent State. But a university employee’s ability to mitigate hardship or refer complaints does not make them an ‘appropriate person.’ See Hill, 797 F.3d at 971. Otherwise, every employee would qualify, and schools would face a form of vicarious liability that Title IX does not allow. See Davis, 526 U.S. at 640-41; Gebser, 524 U.S. at 288.”
The court continued, noting that “a school acts with ‘deliberate indifference’ when its reaction to sexual discrimination is ‘clearly unreasonable’ in light of what it knew. Davis, 526 U.S. at 648. Assessed against this standard, Kent State did not act unreasonably. Kesterson told Barton about the alleged rape on August 24, 2015. Barton started an investigation immediately after Kesterson’s report. Four days later, Linder was forced to resign or face termination. And a week later, Kent State confirmed that Tucker was not enrolled for the upcoming semester.
“Kesterson counters that we should not apply the ‘appropriate person’ test here. But she argued the opposite below. That amounts to a forfeiture. Harvis v. Roadway Express, Inc., 923 F.2d 59, 61 (6th Cir. 1991). The argument is not persuasive anyway. She points out that in Davis, the case that articulated the standard for student-on-student harassment cases, the words “appropriate person” never appear. That’s true, but that’s because the school’s actual knowledge wasn’t at issue. Davis concerned whether a student could sue a school for its deliberate indifference to student-on-student sexual discrimination. 526 U.S. at 643. It adopted the elements of the test from Gebser (decided a year earlier), which dealt with a student’s ability to sue a school when it acts with deliberate indifference to a teacher’s harassment of a student. See Davis, 526 U.S. at 643, 650; Gebser, 524 U.S. at 290. Gebser of course discussed the ‘appropriate person’ requirement for actual knowledge at length. 524 U.S. at 290. At no point did Davis suggest it disagreed with that analysis or that it had developed a new standard. Every mention of ‘actual knowledge’ in the case is tied to district administrators, not school employees. See Davis, 526 U.S. at 647, 651, 654.
“Every circuit to consider the question agrees that plaintiffs alleging deliberate indifference to student-on-student harassment must satisfy the ‘appropriate person’ standard. Hill, 797 F.3d at 971; Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 739 (9th Cir. 2000); Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1247 (10th Cir. 1999). We have said the same in dicta. Stiles, 819 F.3d at 848. And in our prior cases where we did not comment on the point, the parties either did not dispute the school’s knowledge or did not introduce any evidence related to knowledge. See M.D. ex rel Deweese v. Bowling Green Indep. Sch. Dist., 709 F. App’x 775, 776-78 (6th Cir. 2017); Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 363-66 (6th Cir. 2012); Patterson 551 F.3d at 445-46; Winzer v. Sch. Dist. for City of Pontiac, 105 F. App’x 679, 681 (6th Cir. 2004); Vance v. Spencer Cty. Pub. Sch. Dist., 231 F.3d 253, 259 (6th Cir. 2000)”
Still, Kesterson maintained that Linder and the other employees she identified should count as “appropriate persons.”
“But Kesterson offers no evidence that these individuals could act on Kent State’s behalf. She instead says that the employees could have pointed her to school resources, and they all had an obligation to report her allegations. True. But that doesn’t make these errors in judgment or violations of school policy the actions of Kent State or failures to respond by Kent State. An appropriate person is someone ‘high enough up the chain-of-command’ that her decision constitutes the school’s decision. Hill, 797 F.3d at 971. That was not Linder or any of the other employees.
“Kesterson says that Kent State acted with deliberate indifference because its employees failed to follow the school’s policy and made several mistakes during its investigation. But these kinds of errors do not amount to deliberate indifference by the school. Davis, 526 U.S. at 648; Doe, 959 F.3d at 252.”
Kesterson v. Kent State University et al; 6th Cir.; 345 F. Supp. 3d 855, 2018 U.S. Dist. LEXIS 188973; 7/23/20
