Opinion
Case No. 4:01cv 58
October 9, 2002
OPINION
This is a civil action brought by Danny W. and Cynthia L. Noble as legal guardians for their daughter, Carrie L. Noble, a developmentally disabled individual. Plaintiffs' complaint asserts only one federal claim: an action against the Branch Intermediate School District and its Board of Education (collectively the "School District") arising under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681-1688. Plaintiffs' remaining claims against the School District and defendant Robert Montgomery arise under the Michigan Civil Rights Act and common law. Plaintiffs' claims stem from an alleged sexual assault upon Carrie Noble by one of her classmates, Eric Taber, at the Waldron Learning Center, a school operated by the defendant School District for special education students, on April 21, 1998.
Plaintiffs' Title IX claims against the defendant School District proceed on two distinct theories. First, plaintiffs assert that the School District was deliberately indifferent to information known to it before April 21, 1998, resulting in the sexual assault against Carrie Noble and the subsequent deprivation of her educational opportunities. Second, plaintiffs assert that the School District was deliberately indifferent to the sexual assault on April 21, 1998, and failed to take appropriate steps thereafter, thereby increasing Carrie Noble's vulnerability to future assault.
At a hearing conducted on defendants' initial motion for summary judgment on October 12, 2001, the court determined that the allegations in plaintiffs' complaint, taken as true, stated at least one claim upon which relief could be granted against the School District under Title IX. The court further determined that summary judgment would be premature under Rule 56 and that plaintiffs should have an opportunity to pursue discovery in support of their Title IX claim. After the close of discovery, defendants renewed their motion for summary judgment, which is now pending before the court. (docket #48). The motion was the subject of an extended oral argument conducted on July 2, 2002. For the reasons set forth below, the court concludes that plaintiffs have failed to establish a triable claim under Title IX under either of their theories of recovery. A summary judgment will therefore be entered on behalf of defendants Branch Intermediate School District and the Board of Education of Branch Intermediate School District on plaintiffs' Title IX claims. In its discretion, the court declines to exercise supplemental jurisdiction over plaintiffs' remaining claims, all of which arise under Michigan law. The state-law claims will be dismissed without prejudice to allow their refiling in state court.
The parties have consented in writing to the dispositive jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). (See Consent and Order of Reference, docket #10).
Summary Judgment Standard
Summary judgment is appropriate when the record reveals that there are no issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Hiney Printing Co. v. Brantner, 243 F.3d 956, 959 (6th Cir. 2001); Redding v. St. Edward, 241 F.3d 530, 532 (6th Cir. 2001); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1009 (6th Cir. 1997) (en banc). The standard for determining whether summary judgment is appropriate is whether "the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); see Watkins v. City of Battle Creek, 273 F.3d 682, 685 (6th Cir. 2001); Groner v. Golden Gate Gardens Apts., 250 F.3d 1039, 1043 (6th Cir. 2001); Strouss v. Michigan Dep't of Corr., 250 F.3d 336, 341 (6th Cir. 2001). The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Pride v. Bic Corp., 218 F.3d 566, 567 (6th Cir. 2000).
When the party without the burden of proof (generally the defendant) seeks summary judgment, that party bears the initial burden of pointing out to the district court an absence of evidence to support the non-moving party's case, but need not support its motion with affidavits or other materials "negating" the opponent's claim. Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339 (6th Cir. 1993). Once the movant shows that "there is an absence of evidence to support the nonmoving party's case," the non-moving party has the burden of coming forward with evidence raising a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To sustain this burden, a plaintiff may not rest on the mere allegations of his pleadings. Fed.R.Civ.P. 56(e); Dudley v. Eden, 260 F.3d 722, 724 (6th Cir. 2001); Braithwaite v. Timken Co., 258 F.3d 488, 493 (6th Cir. 2001); Campbell v. Grand Trunk W.R.R., 238 F.3d 772, 775 (6th Cir. 2001). "A mere scintilla of evidence is insufficient." March v. Levine, 249 F.3d 462, 471 (6th Cir. 2001). Rather, a party with the burden of proof opposing a motion for summary judgment has the burden to come forth with requisite proof to support his legal claim, particularly where he has had an opportunity to conduct discovery. See Cardamone v. Cohen, 241 F.3d 520, 524 (6th Cir. 2001); Noble v. Chrysler Motors Corp., 32 F.3d 997, 999 (6th Cir. 1994).
Virtually every circuit court of appeals, including the Sixth Circuit, precludes a party from opposing a motion for summary judgment by reliance on affidavits that contradict the previous deposition testimony of the witness. As the Sixth Circuit has enunciated the rule:
If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.
Reid v. Sears Roebuck Co., 790 F.2d 453, 460 (6th Cir. 1986). More recently, the Sixth Circuit has made it clear that this rule applies to the testimony of non-party witnesses, as well as testimony of parties themselves. Peck v. Bridgeport Mach., Inc., 237 F.3d 614, 619 (6th Cir. 2001); accord Doe v. Dallas Indep. School Dist., 220 F.3d 380, 386 (5th Cir. 2000) (Title IX case), cert. denied, 531 U.S. 1073 (2001); Perma Research Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969). Defendants invoke this principle in the present case, asserting that the affidavit of Eric Taber, signed after his deposition, is contradictory to his deposition and must therefore be excluded from evidence. Plaintiffs, while conceding that some aspects of the Taber affidavit are flatly contradictory to his deposition testimony, argue that other factual statements are merely complementary to his deposition testimony and are therefore admissible. The court will discuss this issue in greater detail below.
Findings of Fact A. Background Facts
The background facts giving rise to this lawsuit are not subject to dispute. Plaintiffs' daughter, Carrie Noble, was born on November 11, 1980. Shortly after her birth, she was diagnosed with a congenital condition, known as Sturge-Webber Syndrome. Carrie's condition is marked by neurological abnormalities that often lead to serious seizures. During the school year 1997-98, Carrie Noble was 17 years old and a student at the Waldron Learning Center, a teaching facility in Coldwater, Michigan, devoted to educating special education students. Carrie Noble had been classified as educable mentally impaired or trainable mentally impaired during her attendance at Waldron. The School District does not dispute that it received federal funding during the relevant years.
These terms are defined in Michigan law as follows:
(1) The educable mentally impaired shall be determined through the manifestation of all of the following behavioral characteristics:
(a) Development at a rate approximately 2 to 3 standard deviations below the mean as determined through intellectual assessment.
(b) Scores approximately within the lowest 6 percentiles on a standardized test in reading and arithmetic. This requirement shall not apply if the child is not age or grade appropriate for formal or standardized testing.
(c) Lack of development primarily in the cognitive domain.
(d) Impairment of adaptive behavior.
(2) A determination of impairment shall be based upon a comprehensive evaluation by a multidisciplinary evaluation team, which shall include a psychologist.
(3) A determination of impairment shall not be based solely on behaviors that relate to environmental, cultural, or economic differences.
Mich. Admin. Code R 340.1705.
(1) The trainable mentally impaired shall be determined through the manifestation of all of the following behavioral characteristics:
(a) Development at a rate approximately 3 to 4½ standard deviations below the mean as determined through intellectual assessment.
(b) Lack of development primarily in the cognitive domain.
(c) Impairment of adaptive behavior.
(2) A determination of impairment shall be based upon a comprehensive evaluation by a multidisciplinary evaluation team which shall include a psychologist.
(3) A determination of impairment shall not be based solely on behaviors relating to environmental, cultural, or economic differences.
Mich. Admin. Code R 340.1704.
Eric Taber was also a special education student at the Waldron Learning Center for the school year 1997-98. At the time of the incident on April 21, 1998, he was nearly 22 years old. Taber had attended the Waldron Learning Center throughout his school experience. He had been classified as trainable mentally impaired, with composite IQ scores in the range of 46 to 60. Plaintiffs allege that on April 21, 1998, Eric Taber committed a sexual assault against Carrie, during which he pushed his penis against her buttocks and ultimately penetrated her vagina. Taber was suspended from the school and never returned. He entered a plea of guilty to a charge of fourth-degree criminal sexual conduct, a high misdemeanor involving sexual contact without penetration. Mich. Comp. Laws § 750.520e.
B. Eric Taber's Prior Conduct
Plaintiffs point to several instances of prior conduct by Eric Taber that they assert put the defendant School District on notice of a danger posed to female students, to which the School District was allegedly deliberately indifferent. The court considers these instances both individually and collectively as to the notice provided to the School District. In summarizing the instances of prior conduct, the court shall, as it must, construe the evidence in a light most favorable to plaintiffs and draw all reasonable inferences in their favor, but only when plaintiffs' assertions are supported by admissible evidence and not speculation, mischaracterization, or exaggeration.
1. Adult Female Bus Drivers. Plaintiffs point to Taber's conduct directed to two adult female bus drivers, Deb Stanton, and Cathy Perry. In 1992, Taber's bus driver, Debra Stanton, was the object of aggressive behavior by Taber, where he threatened to strike her as she tried to prevent him from leaving the bus at the wrong stop. Ms. Stanton called 911 and insisted on Taber's removal from her bus. Stanton testified that there was no sexual aspect to this incident and that Taber had never expressed romantic interest in her. (Stanton Dep., 23, 25, 30, 74). After the incident, Taber sent Stanton a note reading, "Fuck you, Dibbie Stanton." Taber was thereafter prohibited from using the bus service for the year. Even though he was forbidden from contacting Stanton, Taber attempted to communicate with her through another special education student and to send her gifts. Taber's conduct towards Stanton was known to school supervisory personnel and was reflected in his individualized education plan on more than one occasion. During the next school year, in 1993, Taber also displayed threatening and even assaultive behavior toward another bus driver, Cathleen Perry. This behavior resulted in a decision to ban Taber from the school bus program altogether. Taber continued to attempt to contact Perry and attempted once to hug her. There is no evidence of any similar behavior after 1993 regarding adult female staff.
Plaintiffs' presentation to this court has often been characterized by hyperbole and exaggeration. Plaintiffs' characterization of Taber's behavior towards Debra Stanton as "obsessive" is one such instance. The record is devoid of any competent evidence, from a psychologist or other qualified source, characterizing Taber's conduct toward Stanton as "obsessive." The only support plaintiffs have for this assertion is the deposition testimony of a teacher, Linda Ives, who agreed with plaintiffs' counsel's suggestion that Taber was "obsessed" with bus drivers on the basis of what she heard from others. (Ives Dep. at 95). This speculation, devoid of factual foundation, would be inadmissible at trial.
2. General Misbehavior and Anger Control; Treatment at Pines Behavioral Health Services. The record supports a conclusion that Eric Taber presented a general behavior problem, especially in the area of anger control, and that he was prone to storming out of classrooms and other angry outbursts. In September of 1992, the School District referred him to Pines Behavioral Health Services for treatment. The intake form (Plf. Ex. J) indicates that Taber had a learning disability and problems with expressing and verbalizing his feelings. It reported that he "blew up" several weeks earlier at school and that he was "loud when angry, occasionally hits/kicks things (recently kicked in bathroom door)." Taber was seen thereafter on a regular basis at Pines Behavioral Health Services, participating in group sessions and treating with more than one mental health professional. He was prescribed psychotropic drugs, including Buspar, Tegretol and Depokote. Taber's treatment records disclose that the principal problems he faced were in the area of impulse control and explosive anger. His feelings toward adult female bus drivers were also the subject of some of the notes. Despite plaintiffs' attempts to characterize these treatment records in a way more favorable to them, however, no reasonable person aware of the content of the records would conclude that they demonstrated that Taber posed a danger to girls his own age. Although Taber's relationships with girls his age were an occasional subject of comment in the notes, the therapists expressed no recognition of a danger of sexual assault. A typical entry follows:
Ways of relating to girls his own age were explained and possible peers whom he is attracted to were identified. Appropriate ways of expressing his feelings were also stated.
(Progress Note, 1/20/93, found in Plf. Ex. O). A similar progress note relates the following:
[Client] hesitantly states he wanted to talk about girls, and that he wanted a girlfriend. We discussed what he wanted a girlfriend to be like, which merely focused on physical aspects. We then discussed what girls liked and didn't like in a boyfriend. This was done as he has a tendency to be threatening or obnoxious to girls he likes. [Client] was initially surprised that girls like to be treated nice and not yelled at. It is possible that this is the behavior that has been modeled for him. We will continue addressing these issues in future sessions.
(Progress Notes, 11/22/93, found in Plf. Ex. O). Similar progress notes reflect discussions between the therapist and Taber concerning appropriate and inappropriate approaches to girls of his age, but never reflect any concern that he might pose a danger of sexually assaultive behavior.
Taber's treatment at Pines Behavioral Health Services lasted from 1992 to 1994. The evidence, taken in a light most favorable to plaintiffs, discloses that school administrators were aware of the course of treatment. As noted above, however, no reasonable person aware of the contents of the progress notes would be put on notice that Taber posed a risk of sexually assaultive behavior to female students. The principal issues concerned anger control and Taber's explosive temper. Significantly, there is no evidence that any person employed by Pines Behavioral Health Services or other mental health professional ever concluded that Taber presented a threat of sexual assault to female students or notified school officials of any such threat.
Taber's annual Individualized Educational Planning Committee Reports (IEPC) (Plf. Ex. E) reflect similar themes. They reflect an ongoing concern regarding Taber's anger management and poor temper control. The parties disagree as to whether the IEPC's disclose improvement over time. This disagreement, however, is immaterial to the outcome of this case. Construed in the best possible light to plaintiffs, Taber's records show a continuing behavior problem in the area of anger management and temper outbursts. They do not provide any notice of a threat of sexual assault or harassment to female students.
3. Psychological Evaluation in 1994. Plaintiffs also point to a psychological evaluation by the school psychologist, P. Michael Bodkins, completed in 1994 as part of a comprehensive three-year reevaluation. (Plf. Ex. S). The principal issues noted by the psychologist were "behavioral outbursts," "extremely low tolerance for frustration," and impaired social reasoning and judgment. Plaintiffs rely on the last sentence of the psychologist's evaluation: "Another concern of this examiner are the attitudes that Eric reflected toward females." The psychological report does not elaborate upon this rather cryptic statement, nor does the "recommendations" section of the report contain any warning of a threat of sexual assault or recommended action in this regard. Plaintiffs nevertheless speculate that a handwritten note found in the psychologist's files somehow gives substance to the vague statement in the report concerning Taber's "attitudes." The handwritten note, found amid other scribbled entries, appears to say "hate women love girls." The threshold problem with this exhibit is that it is completely unauthenticated. Plaintiffs would have the court (and the jury) speculate that the "attitudes" referred to in the psychologist's report are that Eric Taber hated women but loved girls. This argument is based upon complete speculation, not evidence. The psychologist's notes could reflect Taber's statements to him, the psychologist's conclusions, the psychologist's speculation, or something else altogether. In the absence of authenticating testimony, the scribbled hearsay statements are inadmissible for any purpose. More importantly, there is absolutely no evidence that the substance of this handwritten note was ever communicated to School District officials.
4. Alleged Assaults in the 1997-98 Year Involving Other Female Students. Plaintiffs place their greatest emphasis upon two alleged sexual assaults committed by Eric Taber in the 1997-98 school year before the assault upon Carrie Noble. Plaintiffs contend that both assaults were observed by Carol Kelley, a paraprofessional employed at the Waldron Learning Center. The deposition testimony, however, of both Kelley and Taber establishes the existence of a single incident involving a fellow student.
Eric Taber was deposed first, on January 2, 2002. He testified that Carol Kelley "caught me one time with Kelly Meek." Taber testified as follows:
Q. Is Kelly Meek a student?
A. Yeah. But her pants weren't down. I didn't have her pants down whatsoever. Mine weren't down, either.
Q. What were you doing with Kelly then?
A. Same thing.
Q. You were — with your pants on you were rubbing up against her behind?
A. Yeah, but her — all my clothes were up, hers were up. I — hers weren't even down. I didn't even pull hers down.
Q. Okay. But you were rubbing up against her behind?
A. With my pants on. Her pants were up, too.
Q. Carol Kelly caught you doing that?
A. She walked in one day. She says — and she said, Eric, go across the hall, Linda wants to talk to you. I said, okay, and at that time my pants were up, hers were up.
Q. Were your pants ever down with Kelly?
A. No. Uh-uh. No, not mine.
Q. How many times did you do this with Kelly?
A. That I know, it was once. Once. And our clothes were on. I didn't even pull hers down or mine down. They were both up that time.
(Taber Dep., 46-47, docket #55, Ex. B). When asked whether he had ever done that with another girl, Taber testified, "Not — not that I recall, because that was with Carrie then Kelly." (Id., 47-48). Plaintiffs' counsel pressed him, asking whether it were possible that there were other girls. Taber answered, "I don't remember." (Id., 48). Taber testified more than once that the incident with Kelly Meek occurred after the one with Carrie Noble but then was persuaded to change his testimony when plaintiffs' counsel reminded him that he was kicked out of school after the incident with Carrie. (Id.). After further questioning, plaintiffs' counsel went back to the issue of Taber's previous sexual encounters. Taber testified, "Carrie and Kelly was the only two that I ever know of, recall." (Id., 57). Plaintiffs' counsel persisted.
Q. Okay. No other women?
A. No, no other girl besides Kelly and Carrie. Them are the only two that I recall.
(Id., 57-58). Taber then went on to volunteer for the sixth time that both his pants and those of Kelly Meek were up at the time of the incident involving her. (Id., 58).
On cross-examination, defense counsel returned to this issue:
Q. Had you ever done that to any other girl at Waldron Center, pulled their pants down and rubbed your penis up against their butt like that?
A. No besides Carrie and Kelly. When I did it with Carrie my pants were up, Carrie's — not Carrie, but Kelly's pants were up, mine were up. I didn't have none of our clothes were down.
(Id., 75).
The deposition of Carol Kelley was taken on March 27, 2002. She testified that she did not recall any occasion in which she had caught Eric Taber alone with Kelly Meek, as Taber had testified. (Kelley Dep., 41, Def. Ex. D, docket #48). Later in the deposition, however, she testified that she did recall a sexual incident, but did not recall when it happened or the name of the female student. (Id., 77-78). She again denied that the other student was Kelly Meek. (Id., 78). Ms. Kelly testified that she entered the classroom of Linda Ives and saw Taber and a female student in the back of the room. The female student was standing facing the wall and Taber was standing behind her "kind of rubbing on her bottom. Both were fully clothed." (Id., 79-80). Ms. Kelley told both to stop. She did not report it to anyone. (Id., 80-81). Ms. Kelley did, however, speak to each student separately, and she contacted the girl's father. (Id., 80, 89-90). Ms. Kelley testified that the female student did not appear to be upset or to be acting against her will, and that Ms. Kelley did not believe that the incident rose to the level where discipline was appropriate or necessary. (Id., 92-93).
After the Kelley deposition, plaintiffs' counsel interviewed Eric Taber again. Plaintiffs' counsel informed the court in oral argument that he and plaintiffs determined "by process of elimination" that the female student mentioned by Ms. Kelley in her deposition must have been Tammy Macklin. The result of counsel's further conversation with Taber was an affidavit signed by Taber on May 10, 2002. (Plf. Ex. T, docket #52). The affidavit is obviously drafted by counsel. It is virtually impossible that Taber, who reads at a kindergarten or first-grade level, could understand the legalistic wording of the affidavit, let alone be its author. The main points of the affidavit are: (1) that during the incident with Kelly Meek, Taber did indeed lower his pants and expose his penis, but that the girl's pants remained on; and (2) that in the 1997-98 academic year, Taber had sexual contact with Tammy Macklin, during which both of them had their pants partially pulled down. The affidavit asserts that Carol Kelley observed both incidents. As Taber could not possibly have understood the import of the affidavit by reading it, it is in essence the affidavit of plaintiffs' counsel, who affirmed in court that the affidavit accurately summarized Taber's statement to him.
The Taber affidavit is flatly contrary to Taber's sworn testimony given at his deposition. At oral argument, plaintiffs' counsel conceded that the affidavit's description of the incident with Meek (on the issue of whether anyone's pants were down) contradicted the deposition, and that the affidavit was therefore inadmissible on this point. He insisted, however, that the description of the Macklin incident was merely "complementary" to the deposition testimony, because Taber only testified that he did not remember another incident. This is a serious mischaracterization of the deposition testimony. Taber was asked on more than one occasion during his deposition whether he was involved in any other incident, and his answer was always in the negative, although he used different words each time. This is not an instance in which the deponent was asked a single question and answered "I don't recall." Rather, Taber consistently denied that any other incident occurred, sometimes flatly denying and other times ending his statement with the words, "that I can recall." Read in its totality, Taber's deposition must stand for the proposition that only one previous sexual contact occurred before the Carrie Noble incident. The Taber affidavit is incompetent in response to a motion for summary judgment under the Sixth Circuit's decision in Reid and similar cases, as it directly contradicts Taber's sworn deposition testimony.
C. Sexual Assault Against Carrie Noble and Its Aftermath
The alleged sexual assault occurred on the afternoon of April 21, 1998, when Taber and Carrie Noble were alone in a classroom. The record clearly supports the fact of sexual contact between Taber and Carrie Noble. Taber approached Carrie Noble from behind and pinned her against a cupboard. Taber pulled Carrie's pants down and pushed his penis against her. (Carrie Noble Dep., 21-24, Plf. Ex. U, docket #52). Since the record would support a jury finding that there was penetration, the court must assume penetration for purposes of the pending motion. This was the first time that Taber had ever done anything like this to Carrie. (Id., 31). The incident was not witnessed by any member of the school staff. Carrie Noble testified that the first person she told of the incident was a fellow special education student, Tony Hisel. (Id., 24).
It is undisputed that the first staff member to learn that something had happened was Karen Stroup, a paraprofessional. Late in the afternoon, when the students were beginning to get on the bus, Tony Hisel told Ms. Stroup "that Carrie Noble told him that Eric Taber wanted to have sex with her." (Stroup Dep., 14-16, Def. Ex. E, docket #48). Hisel did not say that Taber had actually tried to have sex with Carrie. (Id.). Ms. Stroup told a fellow paraprofessional, Celeste Brown. (Id., 18). The testimony of Carrie Noble is consistent on this issue. ("I told Karen Eric tried to hump me." Carrie Noble Dep., 31, Def. Ex. F). Stroup talked to Carrie Noble to determine what happened. At first, Carrie denied that anything happened, but then said that "Eric tried to hump her and pushed her against the table." (Stroup Dep., 18). By that time, Taber had already left the school with his mother. (Id., 19). Carrie Noble did not appear to be upset, and Stroup allowed her to go home, as it was the end of the day. (Id., 19). She did not think it necessary to speak to anyone about the incident that day. Specifically, she testified that she did not attempt to reach Mr. Montgomery, the school principal, because she believed that "nothing happened." "He tried. He did not succeed." (Id., 20).
Celeste Brown likewise testified that Stroup told her that "Carrie had mentioned that Eric had tried to hump her and pushed her against the table." (Brown Dep., 22-23, Plf. Ex. V). Ms. Brown observed that Carrie did not seem upset. She and Stroup decided that as soon as the teacher, Linda Ives, and Principal Montgomery were in the building, they would let them know. (Id., 23). Apparently, both Ives and Montgomery were away from the building at the time of the incident.
Mrs. Stroup reported the incident to Linda Ives the next morning, April 22. (Ives Dep., 40, Def. Ex. I, docket #48). Taber came to school as usual, but appeared upset because his name was on the board. When Ives tried to speak to him concerning the previous day's incident, Taber stormed out of the classroom. (Id., 42). Ives spoke to Carrie Noble at approximately 9:45 a.m. At first, Carrie said nothing had happened. When confronted with her statement to Ms. Stroup the previous afternoon, Carrie said, "He had sex with me," and "he touched me." (Ives Dep., 45). Carrie's description of the incident to Ives was consistent with Carrie's later deposition testimony — Taber approached her from behind, pushed her against something, pulled down his pants (or unzipped his pants), and touched her private parts. (Id., 45). Ives testified that she called the principal, Robert Montgomery, who was engaged in IEPC meetings out of the building, and left a message for him to call. (Id., 49).
Both Ms. Ives and Mr. Montgomery testified that Montgomery's first notice of the incident was at approximately 11:30 a.m. on April 22, when he returned to the school building from his IEPC meetings. (Ives Dep., 53; Montgomery Dep., 54-55, Def. Ex. G, docket #48). Plaintiffs Danny and Cynthia Noble, however, both assert in affidavits that Montgomery admitted to them in later conversations that he knew something on the day of the incident, April 21, but waited until the next day to speak to anyone about it. (Cynthia Noble Aff., ¶ 12, Plf. Ex. A; Danny W. Noble Aff., ¶¶ 12-13, Plf. Ex. W). Montgomery disputes this. (Montgomery Dep., 61). As unlikely as it appears, the court must accept plaintiffs' version for purposes of this motion. If Montgomery knew something on April 21, however, his knowledge could have been no greater than that of paraprofessionals Karen Stroup or Celeste Brown — that Tony Hisel said that Carrie said Taber wanted to have sex with her and that Carrie told Stroup that Taber had "tried to hump her."
At about 1:00 p.m. on April 22, Montgomery called Mrs. Noble and asked her to meet with him at the school, but did not say what the meeting was about. They met at 2:30; Montgomery, Mrs. Noble, Linda Ives, Carrie, and Barb Colvin, a social worker were present. Montgomery told Mrs. Noble that Carrie had been sexually assaulted and asked Carrie to recite what had happened. During the meeting, Montgomery asked Mrs. Noble whether she wanted him to call the police. He did call the police, and the Nobles took Carrie to the emergency room for a rape kit and then to the Coldwater Police Department.
On April 23, 1998, Montgomery sent Taber's parents a letter informing them that Eric Taber was suspended from school for a ten-day period for "unauthorized departure of the building, harassment of a student, and possible commission of a misdemeanor." (Def. Ex. H). Mrs. Ives was directed to conduct an investigation of the incident. Her investigation culminated in a written report. (Although neither party has provided the court with a copy of the report, it was the subject of examination during deposition. See, e.g., Ives Dep., 40-62, Def. Ex. I; Montgomery Dep., 54, Def. Ex. G). By the time Mrs. Ives wrote her report, Eric Taber had confessed to the Coldwater Police Department.
In addition to the investigation and suspension of Taber, the school installed locks on certain hallway doors and prepared a crisis intervention plan. (Montgomery Dep., 88; Ives Dep., 98). Plaintiffs requested a change in Carrie's room assignment and that Taber's picture be removed from a collage that had been displayed in the hallway. The school ultimately accommodated these requests. (Ives Dep., 96-97). There is no evidence that Taber ever applied for readmission after his suspension or that he ever entered the school premises again. There is also no evidence that Carrie Noble or any other female student was thereafter the victim of sexual harassment at the school by Eric Taber or anyone else.
Plaintiffs assert that school officials balked at first in granting these accommodations, and only granted them when plaintiffs threatened to get their attorney involved. (Cynthia Noble Aff., ¶¶ 31-36, Plf. Ex. A). Accepting plaintiffs' assertions, it is nevertheless clear from their own affidavits that the accommodations were in fact made, and that they occurred within thirty days of the request in each instance.
Discussion A. Governing Principles
Plaintiffs' sole federal claim arises under Title IX of the Education Amendments of 1972. The relevant portion of Title IX provides, with certain exceptions not at issue here, as follows:
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). Title IX expressly provides only administrative enforcement mechanisms, pursuant to which federal agencies are empowered to enforce the statute's nondiscrimination provisions through any means authorized by law, including ultimately the termination of federal funding. 20 U.S.C. § 1682. In a series of controlling decisions, however, the Supreme Court has both recognized an implied right of action under Title IX and established its contours. The Court held in Cannon v. University of Chicago, 441 U.S. 677 (1979), that Title IX is enforceable through an implied private cause of action. In Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), the Court held that monetary damages are available for violation of Title IX. Franklin involved allegations that school administrators knew about a teacher's sexual harassment of a student but took no action. In affirming the viability of a private cause of action for damages, the Court was careful to limit such claims to cases in which "intentional discrimination is alleged." 530 U.S. at 74-75.
The Court further defined the contours of a school district's liability for sexual harassment of a student by a teacher in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998). In Gebser, the Court held that it would frustrate the purposes of Title IX to permit a damage recovery against a school district for a teacher's sexual harassment based upon principles of respondeat superior or constructive notice. 524 U.S. at 285. The Court pointed out that Title IX is in essence a contract between the federal government and the recipient of funds, "conditioning an offer of federal funding on a promise by the recipient not to discriminate." Id. at 286. Because the nondiscrimination provisions of Title IX represent an exercise of the spending power of Congress, the Court determined that greater scrutiny is required before holding the recipient of federal funds liable for noncompliance with the condition. Id. at 287. Consequently, the Court's "central concern" was to insure that "`the receiving entity of federal funds [has] notice that it will be liable for a monetary award.'" Id. at 287 (quoting Franklin, 503 U.S. at 74). For these reasons, the Court pointedly rejected any theory of liability that would allow recovery and damages solely on the basis of vicarious liability or constructive notice. In short, Gebser rejects liability under Title IX based upon what a school district "should have known." 524 U.S. at 283.
Instead, the Court turned to the express remedial scheme under Title IX, which is predicated upon notice to an "appropriate person" and an opportunity to rectify any violation. 20 U.S.C. § 1682. On this basis, the Court held as follows:
Consequently, in cases like this one that do not involve official policy of the recipient entity, we hold that a damages remedy will not lie under Title IX unless an official who at minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of the discrimination in the recipient's programs and fails adequately to respond.524 U.S. at 290. Furthermore, the Court held that the response "must amount to deliberate indifference to discrimination." Id. The Court explained that any lower standard, such as one based upon negligence, would create "a risk that the recipient would be liable in damages not for its own official decision but instead for its employee's independent actions." Id. at 290-91.
The Supreme Court first faced the potential liability of a school district for student-on-student sexual harassment in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). The Court reviewed its precedents in the area, and reaffirmed that "a recipient of federal funds may be liable in damages under Title IX only for its own misconduct." 526 U.S. at 640. The Court further reiterated that liability must be based upon intentional conduct and therefore rejected the use of agency principles to impute liability to the district for the misconduct of its employees. Summarizing its previous holding in Gebser, the Court remarked as follows: "Likewise, we declined the invitation to impose liability under what amounted to a negligence standard — holding the district liable for its failure to react to teacher-student harassment of which it knew or should have known." Id. at 642 (citing Gebser, 524 U.S. at 283). Liability, therefore, arises only from "`an official decision by the recipient not to remedy the violation.'" Id. (quoting Gebser, 524 U.S. at 290).
Turning to the question of student-on-student sexual harassment, the Court held that the misconduct identified in Gebser — deliberate indifference to known acts of harassment — can amount to an intentional violation of Title IX "in certain limited circumstances." Id. at 643. The Court addressed the proper definition of the term "discrimination" in the context of student-on-student harassment, concluding as follows:
Rather, a plaintiff must establish sexual harassment of students that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities.526 U.S. at 651. The Court therefore limited private damage actions to cases "having a systemic effect on educational programs or activities." Id. at 653. The Court remarked that student-on-student harassment would rarely meet this standard. Id.
The Supreme Court's jurisprudence in this area may be summarized as follows. To survive a motion for summary judgment in a Title IX action based upon student-on-student acts of sexual harassment, the plaintiff must raise a triable issue of fact on the following propositions:
First, the existence of student conduct that is so severe, pervasive and objectively offense, and so undermines and detracts from the plaintiff's educational experience, that the plaintiff has been effectively denied equal access to an institution's resources and opportunities.
Second, actual knowledge of the discrimination by an "appropriate person," that is, a school official who must at a minimum have authority to address alleged discrimination and institute corrective measures.
Third, the school district's failure to respond adequately in such a way that the response amounted to deliberate indifference, which causes the student to undergo harassment or makes her vulnerable to it.
Davis, 526 U.S. at 644-51; see Vance v. Spenser County Pub. Sch. Dist., 231 F.3d 253, 257 (6th Cir. 2000); Soper v. Hoben, 195 F.3d 845, 854 (6th Cir. 1999); accord Wilson v. Webb, Nos. 99-5459, 99-5460, 99-5461, 99-5462, 2000 WL 1359624 (6th Cir. Sept. 13, 2000), cert. denied, 532 U.S. 942 (2001). Upon review of the evidence of record, I conclude that plaintiffs have failed to raise a triable issue in support of any of the three foregoing propositions, under either alternative theory of liability they have advanced.
B. School District's Liability For the April 21, 1998 Sexual Assault
Plaintiffs seek to hold the School District liable under Title IX for the sexual assault against Carrie Noble by Eric Taber occurring on April 21, 1998. In order to survive a motion for summary judgment, plaintiffs must create a jury triable issue on each of the propositions established by the Supreme Court. Plaintiffs have not done so.
1. Severe, Pervasive and Objectively Offensive Sexual Harassment
In their effort to hold the School District liable in damages for the sexual assault committed on Carrie Noble in April of 1998, plaintiffs must first establish preexisting acts of sexual harassment that were so severe, pervasive and objectively offensive that they had a "systemic effect" on the Waldron School's programs or activities. See Davis, 526 U.S. at 653. In an effort to meet this standard, plaintiffs point to Eric Taber's misconduct directed at adult female bus drivers in 1992 and 1993, his documented pattern of misbehavior and angry outbursts throughout his educational career, and his alleged sexual harassment of at least one other female student. Plaintiffs argue strenuously that the previous acts of sexual harassment need not be directed at the plaintiff in order to satisfy the first element of a Title IX claim. This proposition, standing alone, is unobjectionable. Cf. Doe v. School Administrative Dist. No. 19, 66 F. Supp.2d 57, 63 (D.Me. 1999) (actual notice of a teacher's past sexual abuse of other students sufficient). The problem with plaintiffs' proofs, however, is that the past incidents they point to, either in isolation or taken in their totality, fall far short of the severe, pervasive and objectively offensive conduct required to put a school district on notice of a threat of sexual abuse by one of its students.
The evidence predating the 1997-98 school year warrants little discussion. Taber's aggressive conduct towards adult bus drivers in 1992 and 1993, when he was 16 and 17 years old, could not possibly be deemed to be severe and pervasive acts of sexual harassment that would deprive female students of access to educational opportunities. Taber's conduct was directed toward adults, not fellow students. Despite plaintiff's arguments to the contrary, his conduct was physically, not sexually, aggressive. Neither bus driver testified that Taber's conduct had any sexual aspect. The same can be said concerning Taber's history of general misbehavior and anger control, both as reflected in school records and his treatment and evaluation reports. Taber definitely had problems with a bad temper and violent outbursts. There is no evidence, however, that any of his documented conduct could be deemed severe, pervasive and objectively offensive sexual harassment aimed at fellow students. In fact, no school official testified to any previous act of sexual misbehavior by Taber before the 1997-98 school year.
In arguing to the contrary, plaintiffs would have this court apply a simple negligence standard to Title IX claims. There is no doubt that school officials knew of Taber's conduct toward the adult bus drivers and his documented history of misbehavior and anger problems. Plaintiffs argue to the court (and seek an opportunity to argue to the jury) that on the basis of the documented record of Taber's problems in controlling his anger, the School District should have somehow foreseen that his conduct might blossom into sexual assault against a fellow student. The Supreme Court, however, has pointedly rejected a school district's liability under Title IX for things it "should have known." Davis, 526 U.S. at 642. Taber's conduct preceding the 1997-98 school year did not display a single incident of sexual harassment directed against anyone, especially a fellow student. The principal was not aware of any allegation that Taber acted in a sexually inappropriate way toward any female student or staff member. (Montgomery Dep., 97). Nor did the reports and analyses of professionals ever contain a single warning of such conduct. A school district's liability under Title IX for student-on-student harassment must be based upon a history of severe, pervasive and objectively offensive sexual harassment. The evidence of such conduct by Taber is completely lacking in this case.
The deficiency in plaintiffs' proofs is not remedied by the evidence of the sexual contact between Taber and a fellow student at some undetermined time during the 1997-98 year. The incident witnessed by Ms. Kelley cannot be deemed either severe or pervasive. She believed that the contact was consensual and took no further action. There is no evidence before the court to indicate that the contact was other than consensual. (See Kelley Dep., 92). Furthermore, a single, brief isolated incident cannot be considered "pervasive" in these circumstances. Finally, there is no evidence that the brief nonviolent encounter between Taber and the female student deprived the female student of access to the educational opportunities or benefits provided by the school.
As discussed in the Statement of Facts, the deposition record establishes the existence of only a single incident, witnessed by paraprofessional Carol Kelly. The only conflict in the testimony of Taber and Kelley concerns the identity of the female student involved. The attempts of plaintiffs' counsel to create evidence of a second sexual contact are unavailing under the authority that prohibits a party from creating an issue of fact by filing affidavits that contradict a witness's previous testimony. The Taber affidavit is especially suspect and calls for a level of scrutiny even greater than that contemplated by Reid and similar appellate decisions. Taber suffers from serious mental handicaps and has a limited ability to read or understand. His deposition testimony raises serious questions concerning his competence as a witness. Taber testified at his deposition that he was scared and repeatedly said that he was unable to remember events because of the passage of time, even when those events took place only the year before. Taber expressed his fear of offending the questioner or being "yelled at" because of his answers. He was a completely pliable and suggestable witness. On more than one occasion, he testified that he did not know the meaning of a word and then proceeded to use it as if he did understand it, only to reveal later in his testimony that his understanding of the word's meaning was not the common understanding. Since the enactment of Fed.R.Evid. 601, issues of mental impairment generally go to a witness's credibility rather than competency to testify. See United States v. Phibbs, 999 F.2d 1053, 1068 (6th Cir. 1993). In appropriate circumstances, however, the trial court has discretion, and in some cases a duty, to hold a hearing to inquire into a witness's competency arising from mental impairment. See, e.g., United States v. Ramirez, 871 F.2d 582, 584 (6th Cir. 1989); see United States v. Gates, 10 F.3d 765, 766 (11th Cir. 1993); United States v. Gutman, 725 F.2d 417, 420 (7th Cir. 1984). Consequently, if this case were tried, the court would require an in limine hearing to determine whether Taber would be allowed to testify in this case at all. The deposition testimony of Carrie Noble, by contrast, does not raise similar concerns.
In essence, plaintiffs argue that the School District should have been aware of Taber's potential for sexual abuse on the basis of his history. This is plainly insufficient. Title IX is not satisfied by proof that school officials should have been aware of a potential for student-on-student harassment. See Baynard v. Malone, 268 F.3d 228, 238 (4th Cir. 2001); cf. Farmer v. Brennen, 511 U.S. 825, 837 (1994) (to meet deliberate indifference standard, official "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he also must draw the inference." (emphasis added)).
The evidence in this case falls far short of that considered by appellate courts as sufficiently severe and pervasive to put school officials on notice of student-on-student sexual harassment. In the seminal case of Davis v. Monroe County Board of Education, for example, the plaintiff's minor daughter was the subject of "a prolonged pattern of sexual harassment" by one of her fifth-grade male classmates, who engaged in sexually suggestive behavior, including attempting to touch the girl's breasts and genital area, rubbing against the girl, and making vulgar statements. The harassment of plaintiff's child "continued for many months," despite the parents' complaints to teachers and assurances by the school principal. School authorities took no disciplinary action, even though they were aware that the same boy was harassing other female students. The Supreme Court held that these allegations were sufficient to state a claim under Title IX and reversed the district court's dismissal of the complaint under Fed.R.Civ.P. 12(b)(6). Similarly, in Vance v. Spencer, 231 F.2d 253 (6th Cir. 2000), the Sixth Circuit upheld a jury verdict for plaintiff under Title IX where the evidence showed that a female student was repeatedly propositioned, groped and threatened, despite letters sent by her mother to the school administration. A fellow student told the girl in front of a class that he had a crush on her and that he could touch her "in any way he wanted and no one was going to do anything about it." 231 F.3d at 256. Afterward, the boy did indeed touch the girl in a sexually assaultive manner and requested sexual favors several times in the presence of a teacher. The court noted that plaintiffs had presented several other incidents satisfying the severity and pervasiveness requirements, including one incident in which plaintiffs' minor was stabbed in the hand and another during which two male students held her while others yanked off her shirt, pulled her hair, and attempted to disrobe. Id. at 258; see also Murrell v. School Dist. No. 1, Denver, Colo., 186 F.3d 1238 (10th Cir. 1999) (reversing Rule 12(b)(6) dismissal where mother alleged that school officials had actual knowledge of repeated sexual assault of her daughter by a fellow student and yet decided to remain idle).
A plaintiff is not required to prove that she was the victim of a previous sexual assault in order to prevail in a Title IX case. The previous conduct, however, must be so severe, pervasive and offensive as to put a school district on notice of a substantial danger of student-on-student harassment. This court concludes that the evidence, construed in a light most favorable to plaintiffs, is insufficient to establish the existence of student-on-student harassment predating the April 21, 1998 assault that was so severe, pervasive and objectively offensive such that the School District should have been on notice that Eric Taber presented a threat of sexual assault to female students at the Waldron School.
2. Actual Knowledge of Discrimination by an Appropriate Person
Plaintiffs' attempt to hold the School District liable for Eric Taber's behavior on April 21, 1998, fails on a second and independent ground. Plaintiffs bear the burden of showing not only the existence of a serious threat of sexual assault but also actual knowledge of that threat by "an appropriate person." As noted above, the Supreme Court's opinion in Gebser rejected use of principles of respondeat superior or vicarious liability for imposing liability on a school district under Title IX. Gebser, 524 U.S. at 285. Rather, the Court in Gebser held that a damage remedy will not lie under Title IX unless an official "who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the [school district's] behalf has actual knowledge of discrimination." In applying Gebser, the appellate courts have required actual knowledge by the school board itself, the school superintendent, or, at least, a school principal. See, e.g., Davis v. DeKalb County Sch. Dist., 233 F.3d 1367, 1371 (11th Cir. 2000); Vance, 231 F.3d at 258 (principal); Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 384 (5th Cir. 2000) (principal). Courts have held, however, that nonsupervisory personnel are not "appropriate persons" under the statute, because they do not have authority to terminate or suspend the offending individual. For example, in Nelson v. Lancaster Independent School District No. 356, No. CIV-00-2079, 2002 WL 246755 (D.Minn. Feb. 14, 2002), the court found that school bus drivers, teachers, and custodians were not "appropriate persons," because they did not have the requisite authority to take corrective action under Gebser. "In cases since Gebser, courts have strictly interpreted this element, requiring that the official in question be capable of terminating or suspending the individual." Id. at * 5; accord Baynard v. Lawson, 112 F. Supp.2d 524, 533-34 (E.D.Va. 2000) (jury verdict overturned on basis that school principal was not an appropriate person, because Virginia state law did not authorize her to transfer or suspend offending teachers).
In the present case, this court assumes that the school principal, Mr. Montgomery, would be an appropriate person under section 1682, as he apparently had the authority to at least suspend an offending student and did so in this case. See Def. Ex. H (Notice of Suspension); Mich. Comp. Laws § 380.1311. With regard to the conduct of Eric Taber occurring before April 21, 1998, plaintiffs can demonstrate that Principal Montgomery knew of or had access to the psychological reports, IEPs, and other school records documenting Taber's aggressive behavior in 1992 and 1993 toward adult bus drivers and his persistent problems with anger control. However, as the court has found in the previous section, these facts were plainly insufficient to place any school official on notice that Taber posed a threat of sexual assault to female students.
Plaintiffs have adduced absolutely no evidence that Montgomery or any other "appropriate person" knew of Taber's sexual contact with another female student in the 1997-98 school year. Even assuming for purposes of argument that two such incidents occurred (one with Kelly Meek and the other with Tammy Macklin), the record is uncontradicted that paraprofessional Carol Kelley was the only School District employee who witnessed or was even aware of the incidents. This is a fatal deficiency in plaintiffs' ability to withstand a motion for summary judgment on their first theory.
For this reason, even if the Taber affidavit were deemed sufficient to create a factual dispute concerning the existence of a second sexual contact, this dispute would not be material for purposes of summary judgment. Plaintiffs have no evidence that either of the alleged incidents was known by any supervisory official of the School District.
Cognizant of this deficiency, plaintiffs strenuously argue that paraprofessional Kelley was indeed an "appropriate person" for purposes of Title IX. This argument is frivolous. Michigan law defines paraprofessional personnel to include teacher's aides, health care aides, instructional aides, and program assistants employed in special education programs. Mich. Admin. Code R. 340.1793. In the context of the present case, the employees identified as "paraprofessionals," such as Karen Stroup and Carol Kelley, were clearly teacher's aides. Paraprofessionals are required to have only a high-school education and do not necessarily have any post-high school certification or training. (Stroup Dep., 4-5, Def. Ex. E). With regard to the crucial question whether paraprofessionals have the authority to "take corrective action to end the discrimination," the record clearly establishes that they do not. Paraprofessionals had extremely limited disciplinary authority. They were allowed only to place a student's name on the board and deprive a student of recess time or community outing privileges (i.e., field trips). (Ives Dep., 40-41, Def. Ex. I; Kelley Dep., 21-28, Plf. Ex. R; Kelley Dep., 81, 93, Def. Ex. D). As teacher's aides, paraprofessionals were supervised by teachers, such as Linda Ives. Teachers, however, had no more disciplinary authority than paraprofessionals. (Kelley Dep., 22-23).
The limited disciplinary authority of paraprofessionals and teachers contrasts markedly with the corrective action that plaintiffs now allege should have followed discovery of Taber's previous sexual contact with one (or perhaps two) female students. Plaintiffs assert that the School District should have formally reported to authorities and investigated the incidents with Meek and Macklin, and disciplined Taber "in some significant manner," including suspending or expelling him from school. (Plf. Brief, 19, docket #52). It is inarguable that either Kelley or Ives had the authority to impose such discipline.
Consequently, plaintiffs' first theory founders on their inability to show actual knowledge by an "appropriate person" of a serious risk of harm posed by Taber. Even accepting plaintiffs' assertion that Taber had previous sexual contact during the year with two other students, it is undisputed that only paraprofessional Kelley knew about the incidents. Paraprofessionals cannot be deemed "appropriate persons" within the meaning of Gebser without completely eviscerating the rule of that and subsequent cases. The mere ability to report abuse, without the authority to take direct action, is not sufficient. P.H. v. School Dist. of Kansas City, Mo., 265 F.3d 653, 662 (8th Cir. 2001); Baynard, 112 F. Supp.2d at 532; see also Warren v. Reading Sch. Dist., 278 F.3d 163, 173-74 (3d Cir. 2002) (principal an appropriate person, but guidance counselor not an appropriate person as a matter of law). Rather, the person with knowledge must be "sufficiently high up in the chain of command" that her actions can be deemed the decision of the school district itself not to remedy the misconduct. Baynard, 112 F. Supp.2d at 532. Paraprofessionals are at the bottom, not the top, of the school chain of command. "If a school district employee, such as a teacher, knows of discriminatory conduct but lacks the power to address the misconduct, by terminating the wrongdoer, for example, then it would contravene the `contractual framework' of Title IX to hold the school district liable for the employee's inaction." Id. The School District cannot be held liable under Title IX for paraprofessional Kelley's acts or omissions, as a matter of law. In the absence of evidence that an "appropriate person" had "actual knowledge" of student-on-student harassment, plaintiffs' first theory of liability fails.
3. Adequacy of School District Response
The Supreme Court has held that Title IX imposes upon a school district a duty not to display deliberate indifference to acts of student-on-student sexual harassment, of which they have actual knowledge, that is severe, pervasive, and objectively offense. Davis, 526 U.S. at 650. As found above, appropriate supervisory officials of the defendant School District did not have actual knowledge of any act of sexual harassment by Eric Taber preceding the sexual assault on April 21, 1998. Although officials did know of Taber's general behavior problems and a remote history of physical aggressiveness towards two adult bus drivers, these facts did not portend any serious risk of sexual assault by Taber.
Furthermore, the School District was not deliberately indifferent to risks occasioned by Taber's previous conduct. It must be remembered in the present case that all of the students involved were special education students, each with significant educational, intellectual, and emotional handicaps. The School District was bound by federal law to afford each of its special education students, including Eric Taber, a "free appropriate public education" in the "least restrictive environment." 20 U.S.C. § 1412(a)(1), (5). The education of adolescents poses daunting challenges in the best of circumstances. These challenges are compounded in the case of intellectual and emotional handicaps. Consequently, the School District was faced with important obligations and demands, some of which may have conflicted or at least been in tension. The School District was required to provide Taber a free appropriate education, despite his emotional handicaps and instability, and to do so in the least restrictive environment. It was also required to provide a safe educational experience for Carrie Noble and other special education students and to maximize their independence, while at the same time providing adequate security.
A school district is guilty of deliberate indifference only when its response is "clearly unreasonable in light of the known circumstances." Davis, 526 U.S. at 649. The record is replete with evidence showing the School District's reasonable response, over a long period of time, to Taber's generally aggressive tendencies and behavior problems. These problems were the source of perennial comment and attempted remediation in the IEPC planning process. Taber was referred to counselors and even psychiatrists in an effort to assist him in gaining self-control. The record is devoid of any incident, or even threat, in which the physical or sexual well-being of a fellow student was imperiled by Taber before the 1997/98 school year. In light of this, the School District would have certainly violated Taber's rights by expelling him or taking other precipitous action on the mere possibility that his angry outbursts might someday lead to more serious conduct. The Supreme Court has directed the lower courts not to second-guess the reasonable efforts of school officials to deal with the very challenging situations they must face on a daily basis. Davis, 526 U.S. at 648. The Court has also underscored the lower court's ability to determine "as a matter of law" that a school district's response has not been "clearly unreasonable." Id. at 649. In the present case, no reasonable jury could conclude that the defendant School District was deliberately indifferent to the facts known to it concerning any threat posed by Eric Taber before the April 21, 1998 incident.
Consequently, this court concludes that plaintiffs have failed to raise a jury submissible issue on any of the three elements of a Title IX claim in support of their first theory of liability — that the deliberate indifference of the defendant School District to a severe and pervasive history of sexual harassment contributed to the sexual assault on Carrie Noble on April 21, 1998.
B. School District's Liability for Deliberate Indifference After April 21, 1998 Sexual Assault
Plaintiffs' second and distinct theory of liability under Title IX is that the School District should be liable in damages for failing to take appropriate steps after the April 21, 1998 assault, thus "increasing Carrie Noble's vulnerability to future assault." Plaintiffs rehearse a laundry list of remedial measures that should have been taken in response to the assault. In some instances, plaintiffs argue that the School District failed to take action that should have been pursued. In other instances, they assert that the School District's remedial action was delayed unduly. (See Plf. Brief, 12-13, docket #52). Plaintiffs assert that the sum total of the School District's neglect and delay constituted deliberate indifference, which increased Carrie Noble's "vulnerability" to future sexual harassment, although none occurred.
Adjudication of the first two elements of a Title IX cause of action with regard to this theory of recovery does not require extensive analysis. First, the court assumes, without deciding, that the sexual assault by Eric Taber satisfies the Supreme Court's requirement of severe, pervasive and patently offensive sexual harassment. Second, it is undisputed that this conduct ultimately came to the attention of the school principal, Mr. Montgomery, an appropriate person within the meaning of Title IX. Consequently, the only issue with regard to plaintiffs' second theory of liability is whether they have raised a jury triable issue on the questions whether (1) the School District was deliberately indifferent to this event and (2) whether the deliberate indifference caused students to undergo harassment or made them liable or vulnerable to it. See Davis, 526 U.S. at 645. The record could not support a jury verdict on either proposition.
This issue is not free from doubt. Neither the Supreme Court nor the Sixth Circuit has held a school board liable under Title IX for an isolated incident of student-on-student harassment. In Davis, the Supreme Court held out the theoretical possibility that a single incident of student-on-student harassment might suffice. The Court cautioned that such a finding would be "unlikely," because the conduct must be "pervasive," that is, it must have a "systemic effect" on school programs. 526 U.S. at 52-53. The Sixth Circuit, in a case involving a long history of sexual harassment, said in dictum that a single incident could suffice, but was not called upon to so hold. Vance, 231 F.3d at 258. Certainly, a sexual assault must be deemed "severe" and "patently offensive," but it is difficult to see how it could be deemed "pervasive," that is, having a systemic effect on school programs. Those few lower court decisions predicating liability on a single incident have not attempted to explain how the "pervasiveness" requirement was satisfied and are therefore unpersuasive. See, e.g., Doe v. Dallas Indep. Sch. Dist., No. 3:01-cv-1092-R, 2002 WL 1592694 (N.D.Tex. July 16, 2002). Given the other deficiencies in plaintiff's proofs, however, it is unnecessary for the court to resolve this issue.
1. Adequacy of School District Response
First, plaintiffs have failed to adduce evidence satisfying the deliberate indifference standard. To meet this standard, a response must be "clearly unreasonable in light of the known circumstances." Davis, 526 U.S. at 648-49. The Davis Court admonished the lower courts against second-guessing decisions of school administrators and emphasized that victims of peer harassment have no right "to make particular remedial demands." "This is not a mere `reasonableness' standard." Rather, plaintiffs must show that the response was "clearly unreasonable," and the court retains the ability to rule a response was appropriate as a matter of law. Id. at 649.
Any reasonable person faced with the April 21, 1998 incident would conclude that the principal, and perhaps only necessary, response was the elimination of Eric Taber from the school environment. Mr. Montgomery took this step promptly, by suspending Taber. Plaintiffs criticize this action as inadequate, because it was not followed up by formal expulsion. Plaintiffs' criticisms are hypothetical. Taber never reapplied for admission after his suspension expired and was never again present on school property. Formal expulsion proceedings were unnecessary and futile. Title IX does not require school administrators to pursue unnecessary and fruitless remedies. Plaintiffs also criticize the alleged "delay" in suspending Taber. Plaintiffs' criticism is based upon their assertion that Principal Montgomery knew something happened on the afternoon of April 21. Even accepting plaintiffs' version of the facts, the record also demonstrates that no one, including Montgomery, then realized the nature of the sexual encounter or that it was criminal. School personnel only knew that Eric Taber had "tried to hump" Carrie. If Montgomery had any knowledge, it was merely that. He had no basis to expel or suspend Taber until the next day, when Carrie revealed the full details of the attack to Ms. Ives. No reasonable trier of fact could conclude that Montgomery was clearly unreasonable in waiting until April 22 to act. Indeed, it probably would have been unreasonable for him to have acted sooner.
Similarly meritless is plaintiffs' contention that the School District should bear liability for its failure to notify the police until the day after the incident. Again, there is no evidence that any school employee knew of the commission of a criminal act on April 21. In fact, all of the evidence is to the contrary. Plaintiffs' main complaint in this regard appears to be that good police work requires quick reporting and the preservation of evidence of rape. Teachers and principals are not policemen. More basically, there is no indication that the prosecution of Eric Taber suffered at all because of the delay in reporting the incident to police. In fact, he confessed to police shortly after he was questioned. Likewise frivolous is the accusation that school authorities failed to seek immediate medical attention for Carrie Noble. This, like plaintiffs' other criticisms, presupposes a level of knowledge of school authorities that is unsupported in the record. No school personnel witnessed the event. The knowledge of the incident possessed by school personnel on April 21 would not lead any reasonable person to believe that Carrie Noble needed medical attention. Plaintiffs seek to impute to school personnel the knowledge that only came to light the next day.
It is easy to understand how parents would be shocked and upset that their disabled daughter was subjected to such a horrifying and criminal attack. It is also easy to understand why, with the benefit of hindsight, parents would wish that certain precautions had been taken sooner. Less easy to explain are illogical arguments by the parents' attorneys, two years after the incident, criticizing school officials for failure to take actions that were not humanly possible at the time of the event. For example, plaintiffs' brief faults School District employees for failing to detain Eric Taber immediately after the incident. (Plf. Brief, 12, docket #52). The record clearly shows that Taber had already gone home when Karen Stroup, a paraprofessional, first learned that something had happened. It would therefore have been impossible for anyone to have detained Taber at school. School District officials are also criticized for failing to provide Carrie Noble with an escort on school premises until Taber was properly detained. If school officials had known of the rape, they certainly would have acted differently. The truth, however, is that they did not know that Carrie Noble was the victim of a sexual assault until Taber was gone. At that point, officials informed the police, and it became the obligation of the police to detain Taber. The making of such patently frivolous accusations does not strengthen plaintiffs' case.
Plaintiffs also fault school officials for delay or failure in making systemic changes. For example, they say that school personnel failed to change Carrie Noble's instructional room until plaintiffs threatened attorney involvement. They also assert that officials failed to remove Eric Taber's picture from a collage in the hall until plaintiffs threatened legal action. The fact remains, however, that in each case school officials did as plaintiffs asked in the same month that plaintiffs made the request. Even though school officials were not required under Title IX to accede to specific parental demands, Davis, 526 U.S. at 648, they clearly did so in this case, although perhaps not as quickly as plaintiffs would have liked. In fact, the record does not disclose that the School District ultimately refused any demand lodged by plaintiffs.
Plaintiffs also assert that the School District failed to hire new security staff, failed to lock certain outside doors, and failed to create systemic counseling programs. There is no evidence that any of these measures, even if they had been taken before the assault, would have prevented this occurrence. There is no evidence of any previous or subsequent sexual assault at the Waldron Center. This was clearly an isolated incident, calling for the expulsion of Taber. Locks on outside doors are irrelevant to student-on-student harassment, as the perpetrator was not an outsider who gained entrance to the building illicitly. Furthermore, there was no occasion to create an armed camp once Taber was gone.
This is not an instance in which school administrators investigated but did nothing. The offending student was suspended, an investigation was held, the school took certain security measures and implemented a contingency plan, and no similar incident ever occurred again. Plaintiffs' laundry list of things that the school should have done is an exercise in fault-finding. The court is persuaded that the School District did not act in a way that satisfied plaintiffs. It may be that none of us would be satisfied with the school's response had our child been the victim of such an assault. No action by the School District could undo the harm caused by Taber's attack. To violate Title IX, however, the response of the school officials must be "clearly unreasonable in light of known circumstances." The known circumstances involved an isolated sexual assault, and school officials acted promptly to remove the perpetrator from the school. Plaintiffs have failed to establish that the school was clearly unreasonable in not implementing the further remedial measures (most of which plaintiffs did not ask for at the time) listed in plaintiffs' brief.
In addition to those things that school officials did not do, plaintiffs place great emphasis upon the affirmative conduct of Linda Ives, Carrie Noble's teacher. Plaintiffs allege that Linda Ives never believed that a rape had occurred and told Carrie Noble so on a number of occasions. Ives suggested at one point that Carrie was beginning to present problems and should go to the ADAPT program all day, rather than attending Waldron Center. Plaintiffs rely on the deposition of Tammy VanWert (Plf. Ex. Z), who testified that Linda Ives made such statements to her in the year 2000, two years after the incident. VanWert agreed that "Carrie was unhappy at Waldron and would be much happier and much content at ADAPT." (VanWert Dep., 146). VanWert's own opinion was that Carrie was unhappy at Waldron and was bored. She also was not getting along with Linda Ives. Id. Plaintiffs argue, in essence, that the attitude displayed by Linda Ives caused Carrie to drop out of the Waldron Center in November of 2000, over two years after the incident.
Plaintiffs do not inform the court of Ms. VanWert's title or employer, but it appears from the excerpts from her deposition that she is some sort of counselor.
The short answer to plaintiffs' contention is that the defendant School District is not vicariously liable for the acts and omissions of its teacher, Linda Ives, under Title IX. The Supreme Court has made it very clear that the School District is only responsible for its own intentional acts. "[W]e concluded in Gebser that recipients could be liable on damages only where their own deliberate indifference effectively caused the discrimination." Davis, 526 U.S. at 642-43. This is not a case in which a student reports abuse, the principal attempts to dissuade the student that the abuse ever happened, and the abuse is therefore allowed to continue. See, e.g., Vance, 231 F.3d at 256. Rather, plaintiffs are dissatisfied with the reaction of a single teacher, not the School District, to an incident of sexual abuse. Title IX does not require that teachers give credence to a particular student's version of events. The statute requires only that the school district not display deliberate indifference, such that future acts of harassment are allowed to continue. Plaintiffs cannot hold the School District vicariously liable for the attitude of one teacher two years after an incident.
The same principle applies to plaintiffs' complaint that Carrie was left alone in a school bus outside a grocery store where Taber worked, at some unspecified time after the incident. (Cynthia Noble Aff., ¶ 41). Apparently, absolutely nothing happened. Whether this incident is viewed as demonstrating carelessness, insensitivity, or plain stupidity, it was the act of a bus driver or other low-level employee, not the School District.
No reasonable jury could conclude that the defendant School District, by its own acts or omissions, displayed deliberate indifference to the April 21, 1998 sexual assault. Furthermore, the School District is not responsible for the attitude of teachers and bus drivers, but only for systemic problems that deprive a student of educational opportunities on account of her sex. Plaintiffs' second theory of liability fails on this ground.
2. Causation
An even greater flaw in plaintiffs' second theory is the lack of causation. The Supreme Court imposes liability under Title IX for student-on-student sexual harassment only where the school district's deliberate indifference causes students to undergo harassment or makes them liable or vulnerable to it. Davis, 526 U.S. at 644-45. In the present case, it is undisputed that Carrie Noble never experienced another incident of sexual harassment after April 21, 1998. Consequently, under no stretch of the law can the School District be found to have caused her to undergo harassment. Plaintiffs therefore argue that the inadequate response of the School District to the April 21 incident caused Carrie Noble to be more vulnerable to future acts of harassment. This theory of liability must fail as a matter of law.
Plaintiffs have failed to cite a single case in which the federal courts have imposed a damage remedy against a school district because its policies somehow made students subject to sexual harassment in the abstract, although that harassment never in fact materialized. Plaintiffs' argument is novel, unsupported in law, and fundamentally contrary to Supreme Court precedent. Plaintiffs argue, in effect, that a school district should be subjected to an award of damages because plaintiffs and their child felt more vulnerable after the attack and the school district did not do enough to assuage this feeling. Plaintiffs argue that "vulnerability is a state of mind." (Plf. Brief, 23, docket # 52). They assert that the School District had a duty to "reduce that sense of vulnerability" for all students, including Carrie Noble. In essence, plaintiffs argue that as long as a student's feeling of vulnerability is objectively reasonable, a school district has an affirmative duty to take whatever steps are necessary to banish this feeling: "Plaintiffs need not establish that a second incident of harassment took place, but only that the deliberate indifference created a circumstance making Carrie Noble liable or vulnerable to future harassment." (Plf. Brief, 23, docket #52). No federal court has so held. In fact, Davis holds to the contrary. There must a direct causal connection between harassment and a school district's deliberate indifference, such that the school district can be said to "`expose' its students to harassment or `cause' them to undergo it `under' the recipient's programs." Davis, 526 U.S. at 645. The Supreme Court has never endorsed a theory that allows recovery of damages because of a fear of future harassment or a feeling of vulnerability. Plaintiffs tear out of context the Supreme Court's use of the word "vulnerable" in explaining how a school district's deliberate indifference might "subject" students to harassment. Id. The Court was merely explaining that a school district violates Title IX when its deliberate indifference exposes students to sexual harassment that could have been prevented by reasonable measures. The Court did not hold, or even intimate, that a school district must pay damages for a student's apprehension of future sexual assault that never materializes.
Plaintiffs have brought to this court's attention an unpublished decision, Doe v. Dallas Independent School District, No. 3:01-cv-1092-R, 2002 WL 1592694 (N.D.Tex. July 16, 2002), which they say is both persuasive and on point. The Doe decision is neither. As an unpublished lower court decision, its precedential value is suspect. Furthermore, Doe was a ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12. The court was therefore required to deny the motion if plaintiffs could conceivably amass facts in support of their theory. Indeed, in the present case, this court denied such a motion under that liberal standard, allowing plaintiffs an opportunity to prove their case, if they could. All such decisions, based as they are on hypothetical facts not yet proved, must be viewed as tentative. More importantly, the Doe case does not support plaintiffs' novel theory of liability. Doe was based upon an allegation that the school district "was `deliberately indifferent' to a sexual assault complaint, which led to a sexual assault by John Doe against plaintiff's daughter." The complaint alleged that Doe had a history of fondling and grabbing female students, to the knowledge of school district administrators. After the second sexual assault, which involved manual penetration of the victim's vagina, school officials allegedly separated the students by removing the victim from the class, not the perpetrator. Obviously, Doe does not stand for the proposition that a sexual assault, followed by a victim's feeling of heightened vulnerability, can lead to a damage award. Rather, the Doe court merely held that plaintiff's allegations of a pattern of abuse by the perpetrator, known to school officials, followed by removal of the victim from the class, was sufficient to state a Title IX claim. Doe is simply not helpful to plaintiffs in the present case.
The published decision of Wilson v. Beaumont Independent School District, 144 F. Supp.2d 690 (E.D.Tex. 2001), is more instructive. In that case, the court entered a summary judgment on behalf of the defendant school district in a case charging the district with violation of Title IX based on student-on-student harassment. In Wilson, as in the present case, the record showed a single act of sexual harassment, which was not followed by any further incident. The perpetrator in Wilson, however, was not expelled from the school. Plaintiffs' claim in that case was therefore based upon a theory similar to that asserted in the present case: that the student experienced an unchanged and unaddressed hostile environment. 144 F. Supp.2d at 694-95. The Wilson court found that such a theory, although viable under Title XII, could not be maintained under Title IX, because Title IX liability is less expansive. The court rejected any effort to base a damage award against the school district upon an increased sense of vulnerability arising from the molester's continued presence:
There is no summary judgment evidence that before or after the incident of sexual molestation any other sexual or nonsexual contact occurred between the boys. Plaintiffs fundamentally seek to have the Court impose Title IX liability on the basis of one incident. But as the Supreme Court concluded, for the sexual harassment to be sufficiently severe, the behavior must have the systemic effect of denying the victim equal access to an educational program or activity.144 F. Supp.2d at 695 (citing Davis, 526 U.S. at 652-53). The present case is even weaker for plaintiffs than Wilson, because here the perpetrator was immediately removed from school. Carrie Noble did not face an unchanged hostile environment after April 21, 1998, in the way that the Wilson plaintiff did, because the source of harassment was gone.
In short, Davis makes school districts liable under Title IX for deliberate indifference that leads to acts of sexual harassment or a deprivation of educational opportunity. It does not premise liability upon a victim's "state of mind" or a "heightened sense of vulnerability" of harassment that never materializes. Contrary to plaintiffs' argument, at least two events are necessary. The first event (or series of events), if sufficiently severe and pervasive, is necessary to put the school district on notice of a problem. The school district then has the obligation to respond in a way that is not clearly unreasonable. Liability can only attach for a second incident — either another episode of sexual harassment, or a decision by school officials, such as occurred in Doe, to exclude the victim from educational programming as a way to minimize future acts of harassment. The record in this case does not support any finding that Carrie Noble was subjected to a second incident of harassment or that the School District, in seeking to remedy the situation, decided to remove her from class or otherwise deprive her of an educational opportunity.
Conclusion
All parents want assurances that their children will be safe at school. No parent would want a child to undergo the experience that Carrie Noble suffered. Title IX, however, exposes school districts to damages only when such events are caused by the school district's deliberate indifference to previous acts of severe and pervasive sexual harassment. Plaintiffs' proofs are utterly inadequate to meet this high standard. The court will therefore enter summary judgment in favor of the defendant School District and against plaintiffs on all Title IX claims.
Plaintiffs' remaining claims arise under the law of the State of Michigan. Where, as here, all federal claims are dismissed, the court has discretion to dismiss the state claims without prejudice. See 28 U.S.C. § 1367(c)(3); see Weeks v. Portage County Executive Offices, 235 F.3d 275, 279-80 (6th Cir. 2000). In normal circumstances, dismissal is the appropriate disposition of such state claims. See Mays v. Buckeye Rural Elec. Coop., 277 F.3d 873, 881-82 (6th Cir. 2002); Hankins v. Gap, Inc., 84 F.3d 797, 803 (6th Cir. 1996). In the present case, dismissal is even more appropriate, as the state claims appear to raise novel issues of Michigan law, best adjudicated in the first instance by the state courts. 28 U.S.C. § 1367(c)(1). Plaintiffs' claims under the law of Michigan will therefore be dismissed without prejudice.