Second Circuit Affirms Dismissal of Title IX School Bullying Claim

The U.S. Court of Appeals for the Second Circuit recently affirmed (by summary order) a dismissal of a claim, arising from a female student’s alleged harassment and bullying, under Title IX of the Education Amendments of 1972. The decision is KF ex rel. CF v. Monroe Woodbury Central School Dist., 13-516-cv, decided August 27, 2013.

Plaintiffs alleged that defendant denied their daughter (identified only as “CF” in the order) the benefits of a public education on the basis of sex, in violation of Title IX. That statute, codified at 20 U.S.C. §§ 1681–88, provides (in relevant part):

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.

The court summarized the “distressing” (its characterization) allegations as follows:

[D]uring the eighth and ninth grades, CF suffered intense and prolonged teasing—indeed, “bullying”—and on two occasions was sexually assaulted. In each instance, a male student demanded that CF perform a sexual act and touched CF in an inappropriate, unwelcome, and invasive manner. CF did not tell anyone about either encounter, but developed severe anxiety and began harming herself. Attending school soon made CF so anxious that she began receiving two hours of daily tutoring at home in lieu of going to high school with her peers. Approximately eleven months after the second assault occurred, CF attended a thirty-day, intensive (and apparently full-time) treatment program, where she revealed for the first time that she had been sexually molested.

Plaintiffs sued after defendant addressed the situation – inadequately in their view – by recommending that CF attend an out-of-district program (which was apparently attended by students with serious disciplinary records) and providing CF with a tutor.

The court summarized the legal standard under Title IX as follows:

A school district receiving federal funds may, in certain circumstances, be held liable under Title IX for sexual harassment committed by one student against another. … However, to prevail in such an action under Title IX, a plaintiff must prove that the school’s deliberate indifference … caused him or her to undergo harassment or made him or her liable or vulnerable to it. … [A] school district’s actions are only deliberately indifferent if they were clearly unreasonable in light of the known circumstances. … [A] court must accord sufficient deference to the decisions of school disciplinarians” and that “victims do not have a right to specific remedial measures.

The Second Circuit agreed with the district court that defendant’s response to the bullying allegations did not, as a matter of law, demonstrate “deliberate indifference.”

Specifically, there was no charge that the school “unreasonably delayed its response or failed to prevent future harassment”; rather, it “met with CF’s parents, offered them alternatives to CF attending high school, and explained that they were entitled to file a grievance if they felt it was appropriate.”  This, according to the court, was enough.

While the school did not take certain additional steps, such as acceding to CF’s parents’ request to place their daughter in a high school in another district (which plaintiffs failed to prove defendant had the power to do), plaintiffs did not “have a right to specific remedial measures.”

Plaintiffs therefore failed to demonstrate that defendant was “deliberately indifferent such that it caused CF to undergo harassment or made her liable or vulnerable to it.”

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