By Emily J. Houghton, PhD
Brian and Jennifer Berg filed a lawsuit as individuals and on behalf of their daughter Regan against the Fargo Public School District (FPSD) and the Board of Education in the City of Fargo in 2021. They argued that Regan faced sex discrimination, deliberate indifference under Title IX, the FPSD Handbook and negligence from FPSD following an alleged sexual assault by a male student off-campus.
The Bergs allege Regan, a high school gymnast, faced sex discrimination from FPSD. Regan was suspended for six weeks (because alcohol was present at the house) after reporting the incident to FPSD. In comparison, John Doe 1 (the alleged assailant) was not initially suspended. In addition, the Bergs argued that FPSD failed to investigate the case in a timely manner and failed to respond to their inquiries about the school district’s investigation into the incident (Baumgarten, 2021). The Bergs filed the initial complaint on April 16, 2021.
On April 27, 202l, the Bergs filed an amended complaint in federal district court against Fargo Public School District and the Board of Education in the City of Fargo bringing claims on behalf of the parents and Regan, for: 1) sex discrimination and deliberate indifference in violation of Title IX 20 U.S.C. §1681 against all defendants; 2) sex discrimination in violation of the FPSD policies; and 3) a North Dakota State law negligence claim.
On October 19, 2019, Regan, and another female student athlete (Jane Doe) on the gymnastics team at Davies High School were at the Berg’s house with two male students (John Doe 1 and John Doe 2). John Doe 1 was also a student at Davies High School, John Doe 2 went to a different high school. The next morning Regan told her parents that she was sexually assaulted by John Doe 1 and John Doe 2, and that Jane Doe was sexually assaulted by John Doe 1 (Berg v. Fargo Public School District and Board of Ed, 2021, *33). The Bergs reported the incident to the Fargo Police Department on October 20, 2019, and on October 21, 2019, the Bergs met with the Davies High School principal, a resource officer, and a counselor to discuss what occurred. They discussed creating a safety plan and providing a “safe room” at the high school for Regan and Jane Doe to use whenever they needed (*34).
During that meeting, the school representatives informed the Bergs that they were suspending Regan and Jane Doe for six weeks because they violated school policy related to underage minors and alcohol. During the same time Regan and Jane Doe were suspended, John Doe 1 and John Doe 2 were allegedly allowed to participate in extra-curricular activities at their respective high schools (*44). When the Berg’s found that out, Jennifer contacted Todd Olson the Director of Activities and Programs for the School District in November 2019. By December 2019, the Davies High School basketball team had removed John Doe 1 and he was no longer playing basketball.
Between December and February 2020, the Bergs notified Davies High School that they had filed a protective order for Regan. The order prohibited John Doe 1 and John Doe 2 from contacting her and coming within 300 yards of her, except if they had the same class. By February 2020, FPSD informed Jennifer Berg that John Doe 1 did not attend Davies High School anymore. As a result of the alleged assault and issues described above, Regan suffered depression, and attempted suicide in April 2020 (*72).
Count 1: Sex discrimination and deliberate indifference in violation of Title IX 20 U.S.C. §1681
The plaintiffs allege that Regan was discriminated against because the school engaged in deliberate indifference through the following inactions: FPSD failed to investigate the case, failed to respond to inquiries about the investigation from her parents, and failed to eliminate a hostile environment in the school (*76). In addition, the plaintiffs allege that the school failed to follow “good faith” stipulations in Title IX that protect the survivor of the assault when FPSD suspended Regan from the gymnastics team after she reported the incident (*80). The defendant’s response to the claim of sex discrimination and deliberate indifference filed by Jennifer and Brian Berg was that the parents lacked statutory standing. The court used a “zone of interests” analysis to determine if the plaintiff falls under the category of individuals the law was designed to protect. The plaintiffs relied on Dipippa v. Union Sch. District, a case where parents filed a Title IX lawsuit as individuals and on behalf of the child who was a minor, to argue that they have standing and therefore should be reimbursed for damages stemming from deliberate indifference of the defendants. The court argued that unlike Dipippa, Regan is not a minor, Regan is an adult (Berg v. FPSD, 2021). Instead, the court utilized Burrow v. Postville Community School District in which the parents of an adult student filed a Title IX lawsuit on her behalf. Similar to the plaintiffs in Burrow, Jennifer and Brian Berg were not “excluded from or denied benefits of Title IX” because they were not students at Davies High School. The court concluded that Jennifer and Brian Berg lacked statutory standing and “failed to state a claim” because Regan was an adult, and they were not students at Davies High School. This claim filed by Jennifer and Brian Berg was dismissed with prejudice. However, Regan’s claim on count I, remains active, in that the defendants acted with deliberate indifference and discriminated against her.
Count II: Sex discrimination in violation of the School District’s policies
In count II, the plaintiffs restate the claims of deliberate indifference and sex discrimination from count I and argue that the FPSD did not follow the formal resolution policies described in the Davies High School Handbook. The school district argued that the sex discrimination claim is not independent of count I and that it should be part of the Title IX discrimination claim (count I) under Federal Rule of Civil Procedure 12(b)(6). The court stated that the Bergs did not cite any specific law or statute that the sex discrimination claim (count II) would violate. Instead, the court continued to state that count II only provided further detail and support to count I, Title IX sex discrimination and deliberate indifference violation. The court pointed to the statement from the plaintiffs that count II “does not stand alone” as evidence of sex discrimination. Since count II was not an independent claim, the court dismissed it without prejudice for both Regan and her parents.
Count III: North Dakota State law negligence claim
The plaintiffs argue that the FPSD and the Board of Education owed them a duty of care under North Dakota state law. The plaintiffs state that the lack of investigation by FPSD, the school’s failure to report the case to the Title IX Coordinator, and failure to enforce the protection order against John Doe 1 & John Doe 2 was a breach to their duty of care (*89). This breach caused Regan further emotional harm and ultimately led to a suicide attempt (*90). The defendants moved to dismiss the claim pursuant to Federal Rule of Civil Procedure 12(b)(6). This statute allows the claim to be dismissed if the plaintiff “fails to state a claim on which relief could be granted.” Jennifer and Brian Berg pointed to policies within the Davies High School Handbook to establish a duty of care to the parents in this situation (*24). The court argued, however that the complaint did not show enough or any specific information from the handbook that the defendants owed a duty of care to Jennifer or Brian Berg. The court went on to state that while the Davies High School Handbook may establish a duty to notify parents when policies, procedures or actions may impact their child, it does not establish a duty of care beyond that to the parents. The court then dismissed with prejudice, the North Dakota state law negligence claim under Federal Rule of Civil Procedure 12(b)(6) filed by Jennifer and Brian Berg. While the court dismissed the parent’s claims for count III, Regan still has an active claim that the defendants acted negligently and breached their duty of care towards her.
In sum, the court dismissed counts I (deliberate indifference and sex discrimination in violation of Title IX) and III (negligence under North Dakota state law) of the parents. The court dismissed count II (sex discrimination in violation of the FPSD Handbook) for all three plaintiffs. Regan’s claims to counts I and III remain ongoing.