When is Rape a Title IX Civil Rights Action?

 By Nathan P. Roberts & Anna L. Price | Trial News

Title IX of the Civil Rights Act was enacted in June 1972 with the purpose of eliminating discrimination on the basis of sex in America’s education system.  In February 2012, as the forty-year anniversary of Title IX approached, a young woman was sexually assaulted in the bathroom of a local high school.  The perpetrator was a fellow special education student who had become obsessed with the victim, our client.  The District’s response to the assault was half-hearted, at best; the offender was never arrested or charged, and our client was left without the medical or psychological treatment necessary to deal with the aftermath of such an event.  She soon determined that holding the school district accountable for its role would be an important part of the healing process, and we agreed to represent her in a Title IX lawsuit.  This article outlines Title IX’s application to “peer-on-peer” harassment situations, summarizes the facts of our case, and discusses why our client’s sexual assault qualified as a Title IX violation.

“Peer-on-Peer” Harassment Under Title IX

            Title IX was part of the Education Amendments of 1972, codified at 20 U.S.C. §§ 1681-1688.  With certain limited exceptions, the law provides that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]”

Title IX is enforceable through an implied right of action,[1] through which monetary damages are available.[2] In the context of student-to-student sexual harassment, the Supreme Court has held that liability will attach to a school district under Title IX where it is “deliberately indifferent to sexual harassment, of which [the district has] actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”[3] Whether gender-oriented conduct rises to the level of actionable harassment under Title IX “depends on a constellation of surrounding circumstances, expectations, and relationships.”[4]

            When student-on-student harassment (or rape) occurs, a school district may be held liable under Title IX if four distinct requirements are met.[5]  First, the district must exercise “substantial control over both the harasser and the context in which the known harassment occurs.”[6]  Second, the sexual harassment must be “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”[7]  Third, the school district must have “actual knowledge” of the harassment.[8]  Finally, the school district must subject the student to harassment via “deliberate indifference.”[9]  The deliberate indifference prong is met if the district causes students to undergo harassment or makes them more liable or vulnerable to it.  Put another way, liability is triggered if, in addition to fulfilling the first three prongs, the district’s response to the harassment “is clearly unreasonable in light of the known circumstances.”[10]

Facts of Our Case

We represented L.S., who was a special education student at Mt. Tahoma High School, in the Tacoma School District, during the 2011-2012 school year. At some point during the school year, she met and befriended Fresnel Williams.  He was also a special education student, and they had some classes together.  Initially they were friends who would spend time together at school, text, and call each other, and occasionally spend some time together outside of class.

During the very beginning of 2012, after winter break, L.S. noticed that Williams had started to change.  By the accounts of L.S.’s teachers, Williams developed an “infatuation” with L.S.  He also became aggressive toward her, began pressuring her to date him, and would not leave her alone.  Williams eventually began stalking L.S. with constant text messages and phone calls.  He began following L.S. around school, even leaving his classes and coming into her classrooms where he was not supposed to be, and had started to become more uptight and jealous when L.S. paid attention to others.  He also began showing up at her house uninvited.  Williams would constantly tell L.S. that he liked her, but she always turned down his requests to go on dates, or to be his girlfriend.  Despite this, Williams began telling his about his plans for their future together as a couple, including getting married and having children.

From this point forward L.S. was very clear with Williams that she was not interested in being romantic with him or in dating him. She also made this clear to her teachers at Mt. Tahoma, and she would often arrive for classes emotional and in tears, due to Williams’ unwanted advances and harassment.

In response to Williams’ recognized “infatuation” with L.S., the special education teachers held a meeting with Williams and his parents, to advise him that he needed to “back off” from L.S.  Despite the meeting, Williams began to get physically aggressive with L.S.  He would grab her arm, chase her through the hallways, grab her rear-end, and at one point even attempted to choke her at school, before a friend intervened.  L.S. eventually became so afraid of Williams that she tried to avoid him whenever possible.

Unfortunately the staff at Mt. Tahoma did not take the situation seriously enough. They told L.S. to avoid Williams, and they attempted to use Williams’ harassment as a teaching tool for L.S. in the art of romance and “appropriate boundaries.”  In March of 2012, Williams learned that L.S. had become interested another classmate, Alex, and that she and Alex had started dating.  This enraged Williams, and he became extremely aggressive with Alex, even threatening to kill him.  The situation became known to the administration, and Williams was suspended for one day for making threats.  However, the District failed to remove Williams from L.S.’s classes and neglected to put any sort of written safety plan in place.

On March 16, 2012, Williams sent L.S. a threatening text message.  This was reported to staff, but no action was taken.  Near the end of the day, L.S. was in sixth period class, along with Williams, when she asked to be excused to use the restroom.  Williams was in class when L.S. left, but he soon exited the classroom and headed to the restrooms, where he waited for L.S. to exit.  When she did, he grabbed her, dragged her into the boys’ restroom, and attempted to rape her in one of the stalls.  The attack was interrupted when another boy came into the restroom.

Rape as a Title IX Violation

A pre-filing tort claim was filed in the amount of $400,000,[11] but the Tacoma School District declined to resolve the matter.  On L.S.’s behalf, we then brought claims in federal court for negligence and violation of Title IX, with the latter cause of action giving us the potential for a significant award of attorneys’ fees and costs if we prevailed.[12]  The Tacoma School District was ably represented by Charles P.E. Leitch and Angela N. Marshlain of Patterson Buchanan Fobes & Leitch, Inc., P.S.

Discovery served to confirm the facts as set forth above, and we began preparing for trial.  Meanwhile, the District moved for summary judgment, claiming that the relationship between L.S. and Williams was “amorphous” and the teenagers were still learning the boundaries of adult behavior. The School District also argued that after the harassment and alleged rape, L.S.’s grades actually improved.  With regard to the requirements of a Title IX claim, the District admitted that it exercised control over F.W. and the context in which the harassment occurred but denied that the other elements were present.

The case had been assigned to U.S. District Court Judge Ronald B. Leighton, and on April 18 he issued his memorandum opinion and order denying the District’s motion in its entirety.  Regarding the requisite severity, pervasiveness, an objective offensiveness, the Court noted that L.S. would sometimes be emotional and cry in class because of interactions with Williams; in fact, it bothered her enough that she complained to teachers and the administration about it. The Court also cited deposition testimony we had elicited from teachers who admitted that Williams was “very disruptive to [L.S.’s] education and the education of others.”

Title IX’s “actual knowledge” requirement forecloses a cause of action unless an official “who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination.”[13]  “In other words, the district is liable only for failure to address known harassment, not for the harassment itself.”[14]  In our case, the Court found that the knowledge of L.S.’s teachers and at least one administrator was sufficient to create an issue of fact.  Likewise, the Court noted that summary judgment is inappropriate where “the plaintiff has alleged specific facts that show that the school district arguably acted with deliberate indifference.”[15]  Summary judgment on the negligence claims was also denied.

The case had been mediated by Margo Keller of Tacoma WAMS.  Following denial of the summary judgment, the District began making significant offers.  On April 23 the parties reached an agreement to resolve the case for $750,000, nearly double the original claim amount.  The case is significant in that it appears to be one of the first reported favorable settlements of a Title IX claim arising from alleged sexual assault perpetrated by a fellow student.

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Nate Roberts and Anna Price are trial attorneys at Connelly Law Offices, PLLC.  The firm’s practice emphasizes catastrophic injury and wrongful death claims, including government liability, civil rights, product liability, medical malpractice, and abuse & neglect cases.

[1]Cannon v. University of Chicago, 441 U.S. 677 (1979)

[2]Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).

[3]Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (1999).

[4]Davis, 526 U.S. at 651.

[5]Reese v. Jefferson School District No. 14J, 208 F.3d 736, 739 (9th Cir. 2000) (quoting Davis, 526 U.S. at 645).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11]See RCW 4.96.020.

[12]See 42 U.S.C. § 1988.

[13]Gebser v. Lago Vista Indep. Sch. Dist, 524 U.S. 274, 284 (1998).

[14] Order Denying Summary Judgment, L.S. v. Tacoma School District, 3:13-cv-5240-RBL (W.D. Wash.), Dkt. #51.

[15] Id.