Northwest Education Law Blog : Northwest Education Lawyer & Attorney : Williams Kastner Law Firm : Tacoma, Seattle, Portland

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The Detroit Free Press reports that a federal jury awarded damages of $800,000 to a student who suffered peer-on-peer harassment at Hudson Area Schools. Further investigation unveiled the plaintiff's complaint, as well as the jury verdict form, filed March 3, 2010.

The plaintiff, a child of David and Dena Patterson identified as “DP,” started to experience bullying as a sixth grader. During sixth and seventh grade, students routinely called DP names such as “queer,” “faggot,” “pig” and “Mr. Clean.” DP estimated he was called such names on over 200 occasions in seventh grade. Students also pushed DP into lockers in the hallway. As DP continued through the school system, he continued to endure attacks of increasing intensity. Students broke into DP’s locker and urinated on his clothing, threw his shoes in the toilet, and mocked DP in class.

The Hudson Area Schools responded to these attacks largely by verbal warnings, which worked to some extent, ending further misconduct by the punished students. However, despite such success, other students were always there to pick up the harassment in place of the previously-reprimanded students. As a result, DP endured systematic harassment from his peers from sixth through ninth grade.

Finally, at the end of DP’s 9th grade year, the situation hit its breaking point. Following a Friday night JV baseball practice, DP’s teammates blocked him into a corner in the locker room while another teammate stripped naked, jumped on DP, and rubbed his genitalia in DP’s face. The teammate was expelled for the few days left in the school year, but just a week later was permitted to attend a school sports banquet.

DP’s parents filed suit on his behalf, alleging a variety of state and federal law claims, including violation of Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681. While Title IX is well known for its role in ensuring gender equality in athletics, its mandate is not so limited. Title IX provides that no person shall be, “on the basis of sex. . . subjected to discrimination under any education program receiving Federal financial assistance.” Under Title IX jurisprudence, educational institutions receiving federal funding may be held liable for peer-on-peer sexual harassment where:

(1) the sexual harassment was so severe, pervasive, and objectively offensive that it effectively barred the student’s access to an educational opportunity or benefit;
(2) the institution had actual knowledge of the sexual harassment; and
(3) the funding recipient acted with deliberate indifference to known acts of harassment.

Initially, the trial court dismissed DP’s Title IX claim for failure to satisfy the third element: deliberate indifference. However, in January 2009, the Sixth Circuit Court of Appeals reversed, remanding the case back to the district court for trial.

In the order reinstating DP’s Title IX claim, the Sixth Circuit emphasized that “even though a school district takes some action in response to known harassment, if further harassment continues, a jury is not precluded by law from finding that the school district’s response is clearly unreasonable.” The Sixth Circuit rejected the school’s argument that its reprimands to individual students were effective as to those perpetrators. “Hudson’s success with individual students did not prevent the overall and continuing harassment of DP, a fact of which Hudson was fully aware, and thus Hudson’s isolated success with individual perpetrators cannot shield Hudson from liability as a matter of law.”

It was the Sixth Circuit’s reversal last year which sent DP’s lawsuit back on course for trial, setting the stage for this week’s determination by a Michigan jury that the Hudson Area Schools violated Title IX, and awarding DP $800,000 in damages. An appeal may follow.

As we await further proceedings in this matter, schools should heed the warning from the Sixth Circuit in the prior appeal: where a school has knowledge that its methods for dealing with peer-on-peer harassment are not effective in curtailing the overall harassment, they may not simply continue to employ those methods, but must seek out a new solution to end the harassment.
 

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With a February 8, 2010 opinion, the Ninth Circuit Court of Appeals gave new life to the Title IX claims of a class of female student athletes on the University of California at Davis (“UC Davis”) wrestling team.

The acclaimed UC Davis wrestling team had previously made room for female wrestlers, allowing them to train and practice with the men’s team, while competing against only other women. UC Davis changed the program in 2000, when it eliminated all women from the wrestling team. Under heavy pressure, UC Davis quickly recanted and allowed the female wrestlers to participate, but only if they could beat male wrestlers in their weight class. The result remained the same, as it effectively destroyed the female wrestlers’ ability to participate.

A class of female wrestlers filed suit, alleging violation of Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681, which provides that “[n]o person shall, on the basis of sex, be excluded from participation in. . . any education program or activity receiving Federal financial assistance.” After the female wrestlers filed suit, UC Davis sought and secured an order of summary judgment, dismissing the Title IX claims as a matter of law, based on the plaintiffs’ failure to give notice to UC Davis in advance of filing suit. Under Title IX, schools may only be held liable for money damages where they “had adequate knowledge that they could be liable for the conduct at issue.” Williams v. Board of Regents of the University System of Georgia, 477 F.3d 1282 (11th Cir. 2007). Title IX is not designed to award damages for unintentional violations. On those grounds, the trial court held that plaintiffs’ claims failed for lack of pre-suit notice.

Reversing the trial court, the Ninth Circuit Court of Appeals held that the notice requirement, applicable in the sexual harassment context, does not apply to violations premised on athletic department policy. “Universities’ decisions with respect to athletics are. . . ‘easily attributable to the funding recipient and. . . always—by definition—intentional.’” Accordingly, there is no notice requirement for Title IX claims based on express athletic policies of the institution.

In an attempt to salvage the trial court’s dismissal, UC Davis argued in the alternative that it was entitled to summary judgment on a separate ground: that UC Davis “had a ‘history and continuing practice of program expansion’ for the under represented sex.’” However, the Ninth Circuit determined that UC Davis failed to satisfy that standard, as the claims at issue arose during a period of “overall contraction of female athletic participation.”

Reversing the trial court’s order of dismissal, the Ninth Circuit remanded the lawsuit back to the trial court for further proceedings on the merits of plaintiffs’ claims.
 

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The Washington State Supreme Court recently issued a groundbreaking ruling relating to the State’s funding of its public school districts in Federal Way School District et al. v. State of Washington, et al., No. 80943-7 (November 12, 2009).

By way of background, through the Washington Basic Education Act of 1977, the Washington state legislature started a system of funding which improved teacher salaries, while still allowing for local salary variation. As a result, twenty years later, the gap between the highest and lowest teacher salaries in the state closed considerably. Nonetheless, there are still significant variations.

The Federal Way School District receives the lowest level of salary funding in the State of Washington. The District, along with certain parents, students and teachers, filed suit against the State alleging that the State’s disparate salary funding levels violates Articles I and IX of the Washington State Constitution. In sum, the State Constitution provides that the legislature must provide for “uniform public schools” and prohibits granting citizens privileges unequal to those allowed to other citizens.

After the King County Superior Court granted the School District’s motion for summary judgment, the State petitioned for direct review by the Washington State Supreme Court. Upon review, the Washington State Supreme Court reversed the trial court, holding that the State’s funding system does not violate the Washington State Constitution.

In reaching its decision, the Washington State Supreme Court recognized that Article IX, Section 1 of the State Constitution declares it is "the paramount duty of the state to make ample provision for the education of all children residing within its borders . . . ." Section 2 requires that the system of public schools be “uniform.” However, according to the Supreme Court, the term “uniform” in Title IX of the State Constitution “means that ‘every child shall have the same advantages and be subject to the same discipline as every other child.’” Critically, the Supreme Court found that the requirement is one for uniformity of educational programs—not uniformity in “the minutiae of funding.”

The Supreme Court also found that the parents, students and teachers joining the District as plaintiffs lacked justiciable claims, primarily because the funding at issue related to funding to districts in general, not teachers individually, and because the parents and students failed to show that the disparate funding resulted in the lack of an “ample provision” of education for the students.

To view the complete Supreme Court opinion, click here.