Thursday, May 31, 2007

School does not have to be effective in stopping peer-on-peer sexual harrassment

Yesterday, in Porto v. Town of Tewksbury, __ F. 2d __ (CA1, Nos. 06-1994, 06-2139) the First Circuit, U.S. Court of Appeals, overturned a jury verdict from the U.S. District Court for Massachusetts that had awarded the plaintiffs $250,000 plus attorneys fees for not effectively stopping (special ed) peer-on-(special ed) peer sexual activity.

The First Circuit agreed with the Town that the plaintiffs had not proven that Tewksbury’s Wynn Middle School’s failure to predict continuing acts on the plaintiffs’ child by the peer constituted "deliberate indifference" to the "sexual harrassment".

The court ruled:

Under Title IX of the Education Amendments of 1972, a recipient of
funding from the United States Department of Education may be liable for damages
if "its deliberate indifference [to peer-on-peer sexual harassment] 'subjects'
its students to harassment." Davis v. Monroe County Bd. of Educ., 526 U.S. 629,
644 (1999). A funding recipient is deliberately indifferent to
student-on-student harassment when "the recipient's response to the harassment
or lack thereof is clearly unreasonable in light of the known circumstances."
Id. at 648. [T]he deliberate indifference must, at a minimum, 'cause [students]
to undergo' harassment or 'make them liable or vulnerable' to it." Id. at 645
(alteration in original) (quoting Random House Dictionary of the English
Language 1415 (1966)). In addition, the acts of sexual harassment must be
"known" to the funding recipient. Id. at 647. Finally, the 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." Id. at 650.

Further citing Davis, the decision went on to say that the legal standard "does not require funding recipients to remedy peer harassment. Davis disapproved of a standard that would force funding recipients to suspend or expel every student accused of misconduct. All that Davis requires is that the school not act clearly unreasonably in response to known instances of harassment."

The whole opinion is available on the First Circuit’s website:

1 comment:

MLR said...

This case makes me glad that I settled a slightly similar case several years ago. My case was a peer-on-peer sexual assault case that settled for $50,000 against the offending child's parents.

My client was 9 years old when a 12 year old neighbor boy had sex with him. We sued when he was 14 after the emotional effects of the assault became clear during therapy for other issues in his family. The theory on which we recovered was that, because of prior deviant acts by the offender, his parents knew or should have known that it was unsafe for a younger child to be left unsupervised with him in his room.

The home-owners' insurer was reluctant to settle on an "intentional tort" case until a run-through with a mock jury showed that we could prevail. Shortly after the mock jury came in with a verdict of $5,000, the insurer offered the $50,000 payment.

The case came to me from a mother whom I had represented twice before. She brought me the case where I learned that we could not write a divorce agreement that could force the father to visit with his children.

And in 1988 she brought me the first care and protection case in which the mother I was representing had me ask the court to order DSS not to close its case and to instead continue to provide services to the family.

That same C&P was my first case involving Multiple Personality Disorder (MPD, now called Disociative Identity Disorder,
DID), my first case involving Munchausen Syndrome by Proxy, my first case involving allegations of ritualized, sexual abuse, my first (and so far only) case in which the mother hid one of her children in my attic so that DSS wouldn't take him and my first (and so far only) case in which I was in court until 8:00 p.m. (having been in court since 9:00 a.m.)