Divided 10th Circuit Affirms Dismissal of Peer Harassment Case

[Guest guest]

Opinion: This story and the actions by the district disgust me. I

apologize in advance for the sexual content of this case. This is; however

what this poor young lady suffered through with absolute depraved

indifference by the adults that were supposed to protect her. ~AAS~

Tuesday, January 08, 2008

Divided 10th Circuit Affirms Dismissal of Peer Harassment Case

The 10th Circuit Court of Appeals recently affirmed a lower court decision

dismissing a peer harassment case originating out of the public schools in

Steamboat Springs, Colorado. Judge McConnell, who dissented from the panel's

decision that the plaintiff failed to make a case under Title IX, presented

this summary of the facts:

K.C., a young teenager with learning disabilities, was coerced into

performing oral sex on a number of boys who were fellow students at her

middle school. Although most of this activity (and all of the actual sexual

contact) took place outside of school, she was mercilessly teased at school,

the boys threatened to spread rumors about her and to circulate naked

pictures of her around the school, and on at least one occasion she was

importuned for sex on the school bus. School authorities took no effective

remedial measures. Eventually, two weeks after her most explicit complaint

to the school, she suffered a series of psychotic episodes, probably caused

by the assaults, and on advice of her psychiatrist withdrew from school.

All three judges agreed that K.C.'s complaint to a school counselor in the

spring of 2002 that boys were " bothering her " did not give the school

adequate notice that she was being assaulted. Judge McConnell called it a

" close call " and chastised the counselor for not pressing K.C. for details

about the manner in which she was being " bothered. " Such follow-up questions

would have been particularly appropriate because (1) K.C. is mildly retarded

and might have had a hard time describing what was happening to her and (2)

one of the boys had previously been disciplined for engaging in sexual

harassment. However, even McConnell agreed that Title IX liability can only

attach when a school district is deliberately indifferent to harassment of

which it had actual knowledge--not harassment that it should have reasonably

been able to discover.

The following school year, K.C. finally told a high school counselor that

she was being assaulted by her classmates. The court agreed that the

district was on adequate notice from this point forward, but disagreed

whether its decision not to discipline the boys was deliberate indifference.

The majority determined it was reasonable for the principal to defer to the

results of a police investigation, in which the police decided not to press

charges because the investigation could not conclusively determine which

sexual encounters between K.C. and the boys were " consensual " and which were

not. In dissent, Judge McConnell would have held the district liable for the

principal's decision to do " absolutely nothing " upon receiving the police

investigation report, which revealed the names of the boys and the nature

and frequency of their sexual conduct with respect to K.C.: " No discipline.

No counseling. No communications with the boys' parents. The principal did

not even call the perpetrators into his office for an admonitory chat. "

This decision helps illustrate the limited scope of Title IX's application

in the peer harassment context. It emphasizes that a district does not have

a responsibility to engage in efforts, however reasonable, to discover

ongoing harassment, and, by absolving the district in the face of its

nonresponse, highlights how truly narrow is the scope of conduct that

amounts to deliberate indifference.

Decision: Rost ex rel. K.C. v. Steamboat Springs RE-2 School District, 2008

WL 54772 (10th Cir. Jan. 4, 2008).

Labels: <http://title-ix.blogspot.com/search/label/harassment> harassment,

<http://title-ix.blogspot.com/search/label/high%20school> high school,

<http://title-ix.blogspot.com/search/label/middle%20school> middle school

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Amy A. Sosa

amy.sosa@...

Coppell, Texas

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