TITLE IX SEXUAL HARASSMENT LAWSUITS

TITLE IX SEXUAL HARASSMENT LAWSUITS

A Roadmap to Defending School Districts

M. Brent Case & Daniel Spivey Semple, Farrington & Everall, P.C. Denver, Colorado

Introduction and Overview

Media presents Title IX sexual harassment as a higher education issue.

Very much a K-12 issue. Legal standard favorable to

school districts. Knowledgeable and creative

plaintiffs will be able to emphasize themes and facts to get to trial and school district attorneys must be familiar with the areas where there is the best chance to win on dismissal or summary judgment.

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The Scope of the Problem

In 2010/11, 48% of 7th through 12th grade students reported experiencing some form of sexual harassment.

85% of 6th through 12th grade LGBT students were verbally harassed and 40% were physically harassed because of their orientation.

Not just a high school problem:

27% of middle school girls and 25% of middle school boys reporting verbal or physical sexual harassment or violence.

Sources: Nat'l Women's Law Ctr.,The Next Generation of Title IX: Harassment and Bullying Based on Sex, Fact Sheet, June 2012; Study: Sexual Harassment Frequent Among Middle School Students, U.S. News & World Report,April 6, 2014.

The Scope of the Problem

Districts may be underreporting, with more than 67% of U.S. districts reporting zero allegations of sexual harassment or bullying during the 2013/14 school year.

Sexual harassment in schools is fundamentally different than sexual harassment in the workplace:

Young children have a developing sense of sexuality and boundaries.

Peer-on-peer harassment often happens in view of students, in hallways, lunchrooms, buses, gyms, playgrounds and classrooms, where the public nature of the harassment can have more serious ramifications for the victim.

Rising cyberbullying will make the problem worse.

Sources: American Association of University Women, Newly Released Data Shed Light on Sexual Harassment in U.S. Public Education, July 13, 2016; Susan P. Stuart, Jack and Jill Go to Court: Litigating A Peer Sexual Harassment Case Under Title IX, 29 Am. J. Trial Advoc. 243, 287 (Fall 2005); Gabrielle Fromer, Brittany Mosi, and Allison Nelson, Sexual Harassment in Education, 17 Geo. J. Gender & L. 451, 465, (2016).

? 2017 National School Boards Association.

All Rights Reserved.

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The Scope of the Problem

With the focus of Title IX sexual harassment/assault at the college level, it has gone under the radar in the K-12 context, but indications show a sharp rise in the number of federal civil rights complaints alleging K-12 schools have mishandled sexual harassment/assault allegations.

Colleges have felt the pressure from media and OCR and responded accordingly by tightening up approach to sexual harassment/assault allegations, but K-12 schools may be behind.

Source: Emma Brown, Washington Post, Sexual Violence Isn't Just a College Problem. It Happens in K-12 Schools, Too (Jan. 17, 2016).

Recent/Noteworthy Settlements and Verdicts

Walsh v.Tehachapi Unified School District, No. 11-cv-1489 (E.D. Cal. 2014): $750,000. Facts: 13-year-old gay middle school student experienced daily taunts and physical harassment because of his sexual orientation. Called "fag," "faggot," and "homo,"; and physical harassment included shoving and inappropriate sexual touching. Plaintiff committed suicide. Title IX claim was alive at time of settlement.

Public Justice's "Jury Verdicts and Settlements in Bullying Cases" (June 2016 edition).

? 2017 National School Boards Association.

All Rights Reserved.

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 Stewart v. Bd. of Tr. for Colo. Sch. for Deaf & Blind, No.12-cv02664-RM-KLM (D. Colo. 2015): $1.4 million settlement.

Facts:Two blind boys, one of whom was developmentally disabled, were sexually abused by a student at a residential school for the deaf and blind. Sexual assaults were repeatedly reported to staff, including the principal, who documented the incidents, but took little action and did not report the abuse to authorities. Sexual assaults were reported to police two years later. Student accused admitted he sexually assaulted five students in a two-year period.

Claims: Title IX peer-on-peer sexual harassment; ? 1983 due process violations;ADA and ? 504 disability discrimination.

Title IX claim survived motion for summary judgment.

Mathis v.Wayne Cnty. Bd. of Educ. No. 09-cv-0034 (M.D. Tenn. 2009): $200,000 jury verdict.

Facts: Eighth-grade boy sexually assaulted two seventh grade boys in the locker room. One plaintiff was held down by three students while another sodomized him with a marker. The other plaintiff was tricked into doing a blindfolded sit-up while a boy stood above his face with his pants down.

Claims:Title IX peer-on-peer harassment; ? 1983 due process and equal protection.

Title IX verdict upheld on appeal by 6th Circuit.

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 Nugent v. Carl Junction R-1 Sch. Dist., No. 3:13-cv05089-MJW (W.D. Mo. 2015): $300,000 settlement.

Facts: Parents alleged their 14-year-old son committed suicide after school failed to protect him from ongoing bullying. The harassment started in seventh grade when Luke came out as bisexual. Students taunted him about his sexual orientation, suggested that he kill himself, physically threatened him, and stole and destroyed his belongings.

Claims:Title IX for "gender-based" harassment; tort; ? 1983 substantive due process.

Title IX Introduction and History

"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." 20 U.S.C. ? 1681(a).

Enforcement: Administrative complaint with OCR or private right of action

? 2017 National School Boards Association.

All Rights Reserved.

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